AU. KURESHIversusHIGH COURT OF GUJARAT & ANR.

                               [2009] 1 S.C.R. 879


                                 AU. KURESHI                                A
                                        V.
                     HIGH COURT OF GUJARAT & ANR.
                        (Civil Appeal No. 472 of 2009)

                              JANUARY 27, 2009
                                                                            B
          [K.G. BALAKRISHNAN, C.J. AND P. SATHASIVAM, J.]

              Administrative Law:

              Bias - Disciplinary Committee of High Court                   c
          recommending dismissal of a Judicial Officer for misconduct
         - Officer dismissed by State Government - Dismissal order
         challenged by Judicial Officer before High Court on judicial
         side - Bench hearing the petition comprising one of the
         members of Disciplinary Committee as Judge - Petition
                                                                            0
         dismissed - HELD: The decision made by Disciplinary
          Committee was a vital component of the process by which
         High Court made recommendation to State Government for
         dismissal of the Judicial Officer - It is, therefore, not proper
         for a member of the said. Disciplinary Committee to decide
         on a challenge against the same dismissal order while acting       E
         in a purely judicial capacity - Order of the High Court set
         aside and case remitted to it for decision afresh in accordance
         with law - Maxim - ·nemo debet esse judex in propria sua
         causa' - Applicability of
                                                                            F
             Ashok Kumar Yadav vs. State of Haryana (1985) 4 SCC
         417, relied on.
-1
                              Case Law Reference:

             (1985) 4 sec 417                relied on         para 9       G

     ~       CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
         472 of 2009.


                                      879                                   H
    880         SUPREME COURT REPORTS               [2009) 1 S.C.R.


A         From the Judgment/Order dated 25.7.2006 passed by the
    Hon'ble High Court of Judicature at Ahmedabad in Special
    Civil Appln. No. 6164/2002.

        Sanjeev Kumar and Venkateswara Rao Anumolu for the
    Appellant.
8
          Sunil Kumar Jain and Aneesh Mittal for the Respondent.

          The Order of the Court was delivered by

                                  ORDER
c
          1. Leave granted.

         2. The present appeal has been filed against the impugned
    order of the High Court of Gujarat at Ahmedabad, dated July
0   25, 2006 which was passed in Special Civil Application No.
    6164 of 2002, whereby the High Court has dismissed the said
    application.

    FACTS:

E        3. The appellant was a Judicial Officer who joined the
  Gujarat Judicial Service in 1991 and was posted as Civil
  Judge (Junior Division) at the District Court, Bharuch. The High
  Court of Gujarat (respondent) received a complaint wherein it
  was alleged that a case bearing Criminal Case No. 2059/89
F under the Gambling Act was listed for hearing in the appellant's
  Court and that the appellant had acquitted the accused and
  also returned the money seized from the accused from the
  scene of occurrence. On the basis of this complaint the
  respondent issued a charge-sheet to the appellant and the
G appellant submitted his reply. A departmental inquiry was
  initiated against the appellant and the concerned Inquiry officer
  submitted his report to the High Court of Gujarat stating that
  the charges levelled against the appellant had been proved. On
  the basis of this report, a show-cause notice was issued to the
H appellant. The appellant filed his reply to this show-cause notice.
      A.U. KURESHI v. HIGH COURT OF GUJARAT & ANR.               881


    Dissatisfied with the appellant's reply, the High Court decided     A
    that it would be appropriate to dismiss the appellant from
    service. By letter dated October 25, 2001, the High Court of
    Gujarat recommended to the State Government that the
    appellant be dismissed from service and accordingly an order
    was passed.                                                         B

        4. The appellant, being aggrieved, filed Special Civil
    Application No. 6164 of 2002 before the High Court of Gujarat
    at Ahmedabad, which has been dismissed by the impugned
    order.
                                                                        c
         5. Hence, this appeal by grant of special leave.

         6. The learned counsel for the appellant has submitted
    before us that one of the members of the Disciplinary
    Committee of the High Court of Gujarat which dealt with the         D
+   appellant's appeal was one of the judges on the bench which
    heard Special Civil Application No. 6164 of 2002 on the judicial
    side. This fact has not been contested by the learned counsel
    appearing for the respondents.

         7. In view of this, it is our opinion that the learned judge   E
    who was part of the Disciplinary Committee which suggested
    the appellant's dismissal should not have later heard the matter
    on the judicial side. In the present case, the Disciplinary
    Committee had suggested the appellant's dismissal on the
    basis of which the High Court of Gujarat made the subsequent        F
    recommendation to the State government.

         8. The decision made by the Disciplinary Committee was
    a vital component of the process by which the High Court of
    Gujarat made the recommendation to the State government for         G
    the dismissal of the appellant. It is therefore not proper for a
    member of the said Disciplinary Committee to decide on a
    challenge against the same dismissal order while acting in a
    purely judicial capacity.
                                                                        H
    882           SUPREME COURT REPORTS                 [2009] 1 S.C.R.


A      9. It is an accepted principle of natural justice that a person
  should not be a judge in his or her own cause. In common law,
  this principle has been derived from the Latin maxim - 'nemo
  debet esse judex in propria sua causa'. A reasonable
  permutation of this principle is that no judge should adjudicate
B a dispute which he or she has dealt with in any capacity, other
  than a purely judicial one. The failure to adhere to this principle
  creates an apprehension of bias on part of the said judge. It
  would be useful to refer to the observations of Justice P.N.
  Bhagwati in Ashok Kumar Yadav v. State of Haryana, (1985)
c 4 sec 417:
                  "One of the fundamental principles of our
           jurisprudence is that no man can be a judge in his own
           cause. The question is not whether the judge is actually
           biased or has in fact decided partially but whether the
D          circumstances are such as to create a reasonable
           apprehension in the mind of others that there is a likelihood
           of bias affecting the decision. If there is a reasonable
           likelihood of bias 'it is in accordance with natural justice
           and common sense that the judge likely to be so biased
E          should be incapacitated from sitting'. The basic principle
            underlying this rule is that justice must not only be done but
           must also appear to be done."

      10. Accordingly, we accept this appeal, set aside the
F impugned order of the High Court of Gujarat at Ahmedabad and
  remit the case to the High Court to decide it afresh in
  accordance with law.

    R.P.                                                Appeal allowed.