K. SRINIVAS v. SECRETARY, ORISSA LEGISLATIVE ASSEMBLY
2008-12-23
B.N.MAHAPATRA, B.S.CHAUHAN
body2008
DigiLaw.ai
ORDER B.S. Chauhan, C.J. - This Writ Petition has been filed for quashing the disciplinary proceeding and to absorb the Petitioner in the post of Senior Assistant with effect from 20th October, 1989 and to publish a fresh gradation list quashing the promotion of Opposite Party No. 2 being in contravention of the direction issued by this Court in OJC No. 13570 of 1999 and many other reliefs. 2. The misc. case has been filed submitting that Petitioner has made attempts to get the case listed for speedy disposal as it is taking much time and is not being listed out of turn. In the application he has made prayer to transfer the matter from a particular Bench and to list it before another Bench. Thus, the question does arise as to whether such a prayer is permissible. 3. The Petitioner appeared in person and has mentioned the matter yesterday (21.12.2008). In order to examine as what are the circumstances under which a unusual prayer has been made the case was directed to be listed today. We have heard the Petitioner in person and after going through the order sheets, we do not find any justification to entertain the prayer for the reason that the Writ Petition was filed on 9th July, 2003. The matter has been heard by different Benches tilt October, 2007 and for the first time the matter was listed before a "particular Bench" from which the Petitioner wants the case to be transferred. The Order Dated 01.11.2007 itself reads that the pleadings were complete and no interim order could be passed in favour of the Petitioner staying the promotion order of the private Opposite Party. The matter was required to be heard at an early date and the same was directed to be listed in the week commencing 3rd December, 2007 making it clear that the promotion of the private Opposite Party would be subject to the result of the Writ Petition. Subsequent thereto, the Petitioner has filed another Misc. Case No. 11151 of 2007 seeking another relief which was also disposed of by the said Bench vide Order Dated 01.11.2007 and thereafter another Misc. Case No. 13250 of 2007 was filed for grant of a certificate under Article 134-A of the Constitution which has been dismissed by this Court vide Order Dated 17.12.2007.
Case No. 11151 of 2007 seeking another relief which was also disposed of by the said Bench vide Order Dated 01.11.2007 and thereafter another Misc. Case No. 13250 of 2007 was filed for grant of a certificate under Article 134-A of the Constitution which has been dismissed by this Court vide Order Dated 17.12.2007. The matter has not been listed even once after 17.12.2007 for which the present misc. case has been filed for early disposal of the Writ Petition. However, question does arise as to whether the Petitioner could ask not to list the matter before a "particular Bench". 4. Though the Petitioner has not complained anything against any Hon'ble Judge but asking the Court not to list the matter before a "particular Bench" amounts impliedly leveling allegations of mala fide and bias against a particular Hon'ble Judge. There may be a case where allegations may be made against the Judge of being bias, prejudice at any stage of the proceedings and there may be some substance in it or may be made to avoid the said Bench if a party apprehends that the Judgment may be delivered against him. Such an opinion may be formed by the party taking into consideration the opinion expressed by the Court during the course of argument. Different standard of proof is required from that of the administrative authority. The Correct legal position in this regard has been that unless a prior policy statement shows a final and irrevocable decision and foreclosing of the mind of the authority as to the merits of the case before it, it would not operate as a disqualification and there cannot be a case of malice or bias. In case such statements are to disable an official from acting as an adjudicatory authority on the ground of bias, then it will be disastrous to the system as a whole for the reason that a Judge has no interest personally in the outcome of the controversy and is still willing and ready to hear the arguments and reconsider the point of law even if it had already been settled, otherwise the question of providing for the remedy of review could not have arisen.
Thus, so long as adjudicator's mind is irrevocably closed and the opinion expressed by him is free from any extraneous consideration, there is no question of entertaining the apprehension of the party, even though his predisposition to certain issues is known to the parties. In respect of the judicial bias, the statement made by Frank J. of the United State is worth quoting: lf, however, 'bias' and 'partiality' be defined to mean the total absence of preconceptions in the mind of the Judge, then no one has ever had a fair trial paper. We are born with predispositions.... Much harm is done by the myth that, merely by....Taking the oath of office as a Judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine" (In re Llnahan 138 F.2nd 650(1943) A distinction may, however, be made between the prejudging of facts specifically relating to a party, and pre-conceptions or pre- dispositions about general questions of law, policy or discretion affecting large number of persons. The former should disqualify but in the latter case; a greater leeway may be permissible. In Bhajan Lal, Chief Minister, Haryana Vs. Jindal Strips Ltd. and Others a similar issue was examined by the Hon'ble Apex Court and it was held that there may be some consternation and apprehension in the mind of a party an undoubtedly, he has a right to fair trial as guaranteed by the Constitution. The apprehension of bias must be reasonable, i.e. which a reasonable person can entertain. Even in that case, he has no right to ask for a change of bench for the reason that such a apprehension may be inadequate and he cannot be permitted to have the Bench of his choice. Requirement of law is that there must be such a disclosure as seen from The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others. The Court held as under: Bias is the second limb of natural justice. Prima facie no one should be a Judge in what is to be regarded as 'sua causa', whether or not he is named as a party. The decision maker should have no interest by way of gain or detriment in the outcome of a proceeding. Interest may take many forms.
Prima facie no one should be a Judge in what is to be regarded as 'sua causa', whether or not he is named as a party. The decision maker should have no interest by way of gain or detriment in the outcome of a proceeding. Interest may take many forms. It may be direct, it may be Indirect, it may arise from a personal relationship or from a relationship with the subject-matter, from a close relationship or from a tenuous one. 5. A Full Bench of the Allahabad High Court in Babu Dwarka Prasad Mithai, Vakil, Muzaffamagar, AIR 1924 All. 253 and a Full Bench of the Patna High Court in S.Mukhtar, Madhepura, AIR 1929 Pat. 151 held that moving an application for transfer of case amounts to professional misconduct. Therefore, such an application should not be filed unless there are compelling Circumstances to do so and if the allegations are made it amounts to inviting contempt proceeding. 6. The Petitioner In person was confronted as to under what circumstances such prayer has been made. He has not furnished any explanation whatsoever. Therefore, we are inclined to give him a chance to explain as to why such conduct of his shall not be viewed as contemptuous necessitating initiation of proceedings against him. List the case on 12.01.2009. B.N. Mahapatra, J. I agree.