Supreme Court of India
SRI ABANI KANT RAYversusSTATE OF ORISSA AND ORS.
- Citation
- 1995 INSC 623
- Decided
- 13 October 1995
- Disposal
- Appeal(s) allowed
- Bench
- S VERMA
Holding
A transfer made in public interest cannot be set aside unless it is arbitrary or malafide, and a tribunal must not make disparaging remarks against a party unless strictly necessary, rendering the Tribunal’s order quashing the transfer and its critical comments unlawful.
Summary
The Chairman of the Orissa Administrative Tribunal, A.K. Ray, appealed to the Supreme Court to have critical remarks made by a Division Bench of the Tribunal expunged. The Tribunal had quashed the transfer of D.N. Mishra, an Additional Secretary who also served as Additional Registrar of the Cuttack Bench, on the ground of alleged malice by the Chairman. The Supreme Court held that a transfer, being an incident of service, can be interfered with only if it is arbitrary, malafide or violates a governing norm, and found that Mishra's transfer was made in public interest to ensure the proper functioning of the Cuttack Bench. Moreover, the Court emphasized that judicial officers must not use intemperate or disparaging language unless essential to the decision, and the Tribunal’s remarks against the Chairman were unwarranted and violated judicial propriety. Consequently, the appeal was allowed, the remarks were expunged, and the Tribunal’s order quashing the transfer was deemed improper.
Issues considered
- The validity of the transfer order of D.N. Mishra and whether it was arbitrary or malafide.
- Whether the Division Bench of the Orissa Administrative Tribunal had jurisdiction to quash the transfer order.
- The propriety of the critical and disparaging remarks made by the Tribunal against the Chairman, A.K. Ray.
- The applicability of the principle that judicial officers must refrain from intemperate language unless necessary for the decision.
Subjects
transfer orderadministrative tribunaljudicial proprietyintemperate languagepublic interestexpungementservice transferjurisdictioncontempt
Judgment
SRI ABANI KANT A RAY A
v.
STATE OF ORISSA AND ORS.
OCTOBER 13, 1995
IJ.S. VERMA AND K. VENKATASWAMI, JJ.] B
Sc1vice La1<v : Transfer orders 111ade in public interest-Coiat not to
inte1fere lvith such orders.
Advc1:re Rc111arks-Nonns of judicial propriety and restraint in exercise C
of judicial power-Use of intemperate language or making di.1paraging
ren1arks-lnconsistent with judicial behaviour unless that be the requirenzent
for deciding the case.
After some controversy, a Bench of the 01-issa Administrative
Tribunal was created at Cuttack. Respondent No. 3 who was posted at the D
relevant time as Additional Secretary to the Revenue Divisional CommisM
sioner held additional charge of Additional Registrar of the Cuttack Bench
of the Tribunal. The appellant as Chairman of the Tribunal not being
satisfied with the performance of the respondent No. 3 as the Additional
Registrar wrote a confidential letter dated 10-4-1992 to the Chief Secretary
E
recommending that any other officer might be deputed to function as the
Additional Registrar while stating that the function of the Cuttack Bench
of the Tribunal was unsatisfactory and could not improve because respon-
dent No. 3 was not interested in doing this work and was only creating
confusion and problems in spite of being explained everything by him as
wdl as the Registrar and that the attitude of the respondent was obstruc- F
tive and, therefore, urgent action was necessary.
A contempt petition was tiled by an Advocate against the Chief
Secretary to Government of Orissa and Chairman of the Tribunal, the
appellant. The High Court, in its order dated 8.5.1992, stated that some G
allidavits of the prncticing Advocates had been filed stating that they had
gone several times to the Additional Secretary for filing new cases, but he
had refused to accept because of which they were compelled to tile new
cases at Bhubaneshwar and that almost all the members of the Bar who
were present on the date of hearing had also made a statement that though
fifing \\'as \\'illy-nilly accepted since a few days, the case record was trans- H
333
334 SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.
A ferred to Bhubaneshwar for registration and after it was numbered there,
it could he taken up in the next circuit Bench of the Tribunal to be held at
Cuttack and so, for urgent matters, a counsel had invariably to go to
Bhuhanesh\\'ar to obtain interhn order.
Re,iecting the stand of respondent No. 1, as an eye \\'ash, the High
B Court held that the Chief Secretary had violated the orders of the High
Court relating to establishment and functioning of a permanent Bench at
Cuttack which were affirmed by the Supreme Court. However, a further
opportunity was granted to the Chief Secretary to implement its order. The
High Court recorded its satisfaction with the action taken by the Chairman
C of the Tribunal to ensure proper functioning of the Cuttack Bench. The
order dated 11.5.1992 was made by the State Government transferring
respondents No. 3 to the post of Additional District Magistrate which had
the effect of his ceasing to function as the Additional Registrar of the
Cuttack Bench of the Tribunal. Respondent No3 challenged his transfer
order. A Division Bench of the Tribunal comprising of Vice-chairman and
D Member (Administrative) granted ex-pmte stay of the transfer order
resulting in the continuance of the respondent No. 3 as the Additional
Registrar of the Cuttack Branch. The State Government filed an applica-
tion for vacating the interim stay order stating therein the facts and
circumstances in which the respondent had been transferred to facilitate
E proper functioning of the Cuttack Bench of the Tribunal. The respondent
made an application to implead the appellant as a party in that proceeding
and made allegation of personal malice against him. The appellant as
Chairman of the Tribunal made an order constituting a Division Bench of
the Vice-chairman and Member (Administrative) who made the order
llllashing the transfer order \\ hile making strong critical conuuents and
1
F
adverse remarks against the appellant as Chairman of the Tribunal. This
appeal by special leave had been filed by tbe appellant to expunge the
critical comments and adverse remarks against him in the impugned order
made by the Division Bench.
G Allowing the appeal, this Court
HELD : 1. It is settled that a transfer which is an incident of service
is not to be interfered with by the Courts unless it is shown to be clearly
arbitrary or vitiated by 1nalajldes or infraction of any professed norm or
H principle governing the transfer. Jn the instant case, the transfer of the
AK.RAY v. STATE 335
respondent No. 3 being clearly in public inter.est, there was no permissible A
ground available to the Tribunal for lJUa~hing it. [340-G]
N.K. Sinl{h v. Union of India pm! Othe1:1·, [1994] 6 SCC 98, relied on.
2. Use of' inten1perate laI;1guage or making disparaging remarks B
against anyone unless that be the ret111ire1nent for deciding the case, is
inconsistent with judicial behaviour. Written words in judicial orders form
permanent record which make it even 1nore necessary to practice self
restraint in exercise of judicial power while making written orders. In the
instant case, the Division Bench of the Tribunal overlooked this aspect and
misread the documents in the record including the High Courts' judgment C
to make disparaging remarks against the appellant as Chairman of the
Tribunal based on a non-existing foundation without even notice to the
appellant. [347-C-D]
The Division Bench of the Tribunal which made the impugned order D
quashing the transfer of the respondent on the ·ground of notice of the
appellant as the Chairman of the Tribunal did so against the material on
record and the facts beyond controversy which bordered on judicial im-
propriety. The background in which the transfer order was issued by the
Government posting the respondent No. 3 as Additional District
Magistrate resulting in his ceasing to function as Additional Registrar of E
the Cuttack Bench of the Tribunal was sufiicient to indicate that the
transfer was made in public interest and it was to ensure proper function-
ing of the Cuttack Bench of the Tribunal. The attitude of the respondent
No. 3 as Additional Registrar of the Tribunal had led to legitimate
grievance in the Bar requiring the Chairman of the Tribunal to take F
prompt steps for proper functioning of the Registry at the Cuttack Bench
of which respondent No. 3 was Incharge. The resentment of the Bar
escalated to a contempt proceeding before the High Court alleging viola-
tion of the Court's order for establishment of the Cuttack Bench and
ensuring its proper functioning. Notice of the contempt petition against G
the appellant was discharged only because of favourable conclusion
reached by the High Court in respect of the appellant holding that the
Chairman had properly discharged his responsibilities to ensure proper
functioning of the Cuttack Bench. This alone was suflicient to indicate
total lack of justification for any adverse comment against the appellant.
The Division Bench appeared to have been totally oblivious to the respon- H
336 SUPREME COURT REPORTS (1995] SUPP. 4 S.C.R.
A sibility of the Chairman of the Tribunal in this behalf. The appellant as
Chairman of Tribunal had a duty lo explain to the High Court the actual
position with regard to the functioning of the Registry to enable the High
Court to decide properly the contempt petition. This had been unfairly
described hy the Division Bench of the Tribunal as undue zeal of the
Chairman. Considering the illegality and impropriety of the observations
B
made by the Division Bench of the Tribunal, it is the duty of this Court to
expunge these unwarranted remarks made unfairly against the appellant.
All the disparaging remarks against the appellant as Chairman of the
Tribunal were, therefore, expunged. [340-B-F, 343-H, 344-B-C]
C Niranjan Patnaik v. Sashiblrnshan Kar, [1986] 2 SCR 470; State of MP
v. Nandla/ Jaiswal, [1987] I SCR I and A.M. Mathur v. Pramod Kumar
Gupta, [1990] 2 SCR 110, relied on.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9383 of
1995.
D
From the Judgment and Order dated 26.8.93. of the Orissa Ad-
ministrative Tribunal, in 0.A. No. 102 (C) of 1992 (O.A. 866/92).
G.L. Sanghi and R.K. Mehta, for the Appellant.
E Jayant Dass, G.S. Chatterjee, P.N. Mishra and AK. Panda (NP) for
the Respondents.
The Judgment of the Court was delivered by
J.S. VERMA, J. Leave granted.
F
This appeal by special leave is by the Chairman of the Orissa Ad- •
n1inistrative Tribunal to expunge certain remarks made against him in the
Order dated 26.8.1993 in Original Application No. 102(C} of 1992 (0.A.
866/1992) by a Division Bench comprising of S.K. Misra, Vice-Chairman
G and U.N. Mallik, Member (Administrative) of the Tribunal. That applica-
tion was made by respondent No. 3 Dandanirodha Mishra for cancellation
of his transfer. The transfer order was quashed by the Division Bench of
the Tribunal. In making that order, strong adverse comments were made
against the appellant as Chairman of the Tribunal.
H The background is of some significance. After some controversy, a
A.K. RAY v. STATE [J.S. VERMA,J.) 337
Bench of the Orissa Administrative Tribunal was created at Cuttack but A
its functioning led to litigation and therein the making of an or.der even by
this Court about its functioning. However) some grievance persisted in
those favouring creation of the Cuttack Bench and a contempt petition was
filed by an advocate against the Chief Secretary to Government of Orissa,
Ramakanta Rath and the Chairman of the Tribunal, A.K. Ray. That
B
contempt petition (Org. Cr! Misc. Case No. 73 of 1992) was decided by an
order dated 8.5.1992. Reference lo this order of the High Court is made
because of its reference in the impugned order of the Tribunal.
Respondent No. 3 D.N. Mishra was posted at the relevant time as
Additional Secretary to the Revenue Divisional Commissioner, Central C
Division at Cuttack and in addition he held the charge of Additional
Registrar of the Cuttack Bench of the Tribunal. Apparently, the appellant
as Chairman of the Tribunal was not satisfied with the performance of D.N.
Mishra as the Additional Registrar of the Tribunal. The appellant wrote a
confidential letter dated 10.4.1992 to the Chief Secretary R.K. Rath recom- D
mending that any other officer may be deputed to function as the Addi-
tional Registrar. In that letter, the appellant had stated that the functioning
of th_e Cuttack Bench of the Tribunal was unsatisfactory and could not
improve because respondent No. 3 D.N. Mishra was not interested in doing
this work and was only creating confusion ar ' problems in spite of being
· explained everything by him as well as the Registrar. The letter further E
stated that the attitude of D.N. Mishra was obstructive and, therefore,
urgent action was necessary in com.pliance with the High Court's direction
confirmed by the Supreme Court. The appellant concluded the letter by
stating as under :
1
Sri D.N. Mishra seems to be determined to undo our
' •••••••••••
F
effort to hold circuit al cuttack. You may take such action as you
think fit against this officer. But I may also suggest the Secretary
to R.D.C. (Central Division) or any other Officer to function as
Additional Registrar, which we shall notify immediately."
G
This letter was written by the appellant to the Chief Secretary on 10.4.1992
and thereafter the contempt petition was finally heard in the High Court
on 20.4.1992 and decided by order dated 8.5.1992. The High Court, in its
order dated 8.5.1992, slated as under :
"......... This apart, some affidavits of the practising Advocates H
338 SUPREME COURT REPORTS [l995J SUPP. 4S.C.R.
A have been filed stating that after the notification of 23.3.1992 had
been issued, they had gone several times to the Additional
Secretary for filing new cases, but he had refused to accept because
of which they were compelled to !ile new cases at Bhubaneshwar.
Almost all the member of the Bar who were present on the date
of hearing on 20.4.1992 (it may be slated that quite a large number
B
of numbers were so present) had also made a statement that
though filing is being willy-nilly accepted since a few days, the case
record is transferred to Bhubaneshwar for registration and after it
is numbered there, it can be taken up in the next circuit Bench of
the Tribunal to be held at Cuttack So, for urgent matters, a
c counsel has invariably to go to Bhubaneshwar to obtain interim
order . ..............."
The High Court then rejected the stand of respondent No. 1, the
Chief Secretary as an eye wash. The order proceeded to hold that the Chief
Secretary had violated the orders of the High Court which were affirmed
D by the Supreme Court. However, the High Court considered it ap-
propriate to grant a further opportunity to the Chief Secretary to imple-
ment its order relating to establishment and functioning of a permanent
Bench at Cuttaek. The High Court did not hold anything against the
Chairman of the Tribunal who was the 2nd respondent in the contempt
E petition. The High Court actually recorded its satisfaction with the action
taken by the Chairman of the Tribunal and concluded as under :
"....... Secondly, we do hope that the Registry at Cuttack func-
tions properly. We may also state that we have noted with satis-
faction the statement made in the affidavit filed on 30.4.1992 that
F remedial measures in this regard, after knowing about the com-
plaints from his Advocates, have already been taken by the Chair-
man.11
There is thus nothing in the High Court's order against the Chairman
G of the Tribunal, the appellant, and in fact there is a record of its satisfaction
with the steps taken by the Chairman to ensure proper functioning of the
Cuttack Bench in accordance with its directions. It is in this background
the order dated 11.5.1992 was made by the State Government transferring
D.N. Mishra to the post of Additional District Magistrate, Koraput, which
had the effect of this ceasing to function as the Additional Registrar of the
H Cuttack Bench of the Tribunal.
A.K. RAY v. STATE [.l.S. VERMA . .l.J 339
Respondent No. 3 challenged his transfer order dated 115.1992 hy A
an application made to the Tribunal. There was no allegation of any kind,
much less of maiafidcs, against the Chairman of the Tribunal,. in the
application so made. On 15.5.1992, a Division Bench comprising of S.K.
Mishra, Vice-Chairman and U.N. Mallik, Member (Administrative)
granted ex paitc stay of the transfer order of D.N. Mishra resulting in the
B
continuance of D.N. Mishra as the Additional Registrar of the Cuttack
Bench in spite of the above background. On 29.5.1992, the State Govern-
ment filed an application in that proceeding for vacating the interim slay
order stating therein the facts and circumstances in which D.N. Mishra had
been transferred to facilitate proper functioning of the Cuttack Bench of
the Tribunal. D.N. Mishra then made an application to implead the appel- c
lant-Chairman of the Tribunal as a party in that proceeding and made
allegation of personal malice against him because of the letter dated
10.4.1992, he had written to the Chief Secretary for rdieving D.N. Mishra
of the responsibility of functioning as .the Additional Registrar of the
Tribunal. The State Government's application came before the appellant D
as Chairman of the Tribunal because of the vacation of the Tribunal. The
appellant then transferred the matter to I. Roy, Member (Judicial) by order
dated 29.5.1992 with a note refuting the allegation of malice made by D.N.
Mishra and stating that his request to the Chief Secretary to change D.N.
Mishra from the post of Additional Registrar was occasioned by the fact
that his improper functioning resulted in inconvenience to the lawyers of E
Cuttack who had a legitimate grievance against the improper functioning
of the Registry at the Cuttack Bench. The appellant stated in the note that
as Chairman of the Tribunal, it was his duty to see that the Circuit Bench
at Cuttack functions properly and therefore, he had to adopt such a course.
The Member (Judicial) then directed the matter to be placed before the
F
Chairman for listing it before a Division Bench of which he did not wish
to be a member. The appellant as Chairman then made an order on
29.6.1992 constituting a Division Bench of the Vice-Chairman and Member
(Admn.) to hear the matter. This is how the matter came to be heard by
the Vice-Chairman S.K. Mishra and Member (Administrative) U.N. Mal-
lik who have made the order dated 26.8.1993 in which strong critical G
comments and adverse remarks have been made against the appellant as
Chairman of the Tribunal while quashing the transfer order of D.N.
Mishra.
We are informed that D.N. Mishra has thereafter been transferred H
340 SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.
A by the Government and he is no longer functioning as the Additional
Registrar of the Cuttack Bench of the Tribunal. The quashing of the
transfer order is not challenged in this appeal. The only question is of the
legality and propriety of the critical comments and adverse remarks made
against the appellant in the impugned order dated 26.8.1993.
·B The background in which the transfer order dated 11.5.1992 was
issued by the Government posting D.N. Mishra as Additional District
Magistrate, Koraput resulting in his ceasing to function as Additional
Registrar of the Cuttack Bench of the Tribunal is sufficient to indicate that
the transfer of D.N. Mishra was made in public interest and it was to ensure
c proper functioning of the Cuttack Bench of the Tribunal. The attitude of
D.N. Mishra as Additional Registrar of the Cuttack Bench had led to
legitimate grievance in the Bar requiring the Chairman of the Tribunal to
take prompt steps for proper functioning of the Registry at the Cuttack
Bench of which D.N. Mishra was Incharge. The resentment of the Bar
D escalated to a contempt proceeding before the High Court alleging viola-
tion of the court's order for establishment of the Cuttack Bench and
ensuring its proper functioning. Even the Chairman of the Tribunal was
impleaded therein as a respondent and he escaped therein because of the
High Court's conclusion that the Chairman had properly discharged his
responsibilities to ensure proper functioning of the Cuttack Bench and for
E that purpose he had also written to the Chief Secretary on 10.4.1992 to shift
D.N. Mishra who was making the functioning of the Registry difficult. In
fact, notice of the contempt petition against the appellant was discharged
only because of this favourable conclusion reached by the High Court in
respect of the appellant. This alone is sufficient to indicate total lack of
F justification for any adverse comment against the appellant.
It is settled that a transfer which is an incident of service is not to be
interfered with by the courts unless it is shown to be clearly arbitrary or
vitiated by malafides or infraction of any professed norm or principle
governing the transfer. Sec N.K. Singh v. Union of India and Other, [1994]
G 6 SCC 98. The transfer of D.N. Mishra in this background being clearly in
public intere\t, there was no permissible ground available to the Tribunal
for quashing it. We are constrained to observed that the Division Bench of
the Tribunal which lnadc the impugned order dated 26.8.1993 quashing the
transfer of D.N. Mishra on the ground of malice of the appellant as the
H Chairman of the Tribunal did so against the material on record and the
AK. RAY v. STATE[J.S. VERMA,J.] 341
facts beyond controversy which borders on judicial impropriety. It may also A
be noted that such comn1ents \Vere 1nade against the -chairn1an \Vithout
even a notice to him and as stated in the order itself after treating the
application for impleading the Chairman to be deemed rejected.
We arc distressed at the tenor nf the impugned order which lacks
judicial propriety and sobriety at many places. We may quote some por- B
tions of thal order which compel us to make this observation. Sarne of the
extracts from the order of U.N. Mallik, Member (Administrative) are as
under:
"................. The Chairman of the Tribunal who had practically
nothing lo do in the matter with regard to providing infrastructure
c
for smooth functioning of the Bench, had no reason to join hands
with the Chief Secretary and though there was no notice to the
Chairman by the Hon'ble High Court in the contempt matter, he
volunteered himself to be dragged into the litigation and through
a common lawyer both Respondent-2 and the Chairman of the D
Tribunal filed their affidavits staling to have provided already all
facilities to the Registry at Cuttack. The Hon'ble High Court did
not believe the plea taken by both Respondent-2 and the Chairman
of the Tribunal and strongly commented upon it to be an 'eye wash'
and 'travesty of truth'. We are in absolute agreement with judgment
E
of the Orissa High Court in this regard. ...... "
"Now we come to the litigation stage in the present case. Even
during pendency of this litigation a judicial restraint which was
expected from any judicial officer was given a complete go-by.
Whether the petitioner had any case or not. Whether he would F
have succeeded or failed in the litigation is a complete different
position altogether. The amount of haste, anxiety and interest
shown by the Chairman of the Tribunal to hear and dispose of this
case in a vacation Bench without the case being listed speaks
volumes by itself. We are not able to appreciate the initial action G
before the transfer order was issued in respect of the applicant
and the subsequent action during pendency of the litigation by a
responsible person discharging judicial function like the Chairman
of the Tribunal. .......... .
Judged the conduct of the Chairman in the light of the obser- H
342 SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.
A vations of the Apex Court. I find that be had completely trans-
gressed the minimu1n judicial norm and constraints required.
In the premises, for the discussions n1adc in the foregoing
paragraphs we have absolutely no hesitation to hold that the
impugned order of transfer is arbitrary and actuated by malafide
B of Respondent-2 for which the ·Order has beco111e unsustainable
and untenable in law. Accordingly, we quash the orde( Of transfer
relating to the applicant, ........ " -
Thereafter, in a separate order, the Vice-Chairman S.K. Mishra
expressed his agreement with the conclusion of the Member (Administra-
c
tive) and after observing that the application for imp leading the Chalrrriaf
was deemed to be rejected, proceeded to say as under: ·. -.
"In the Judgment of the Hon'ble Member (Administrative)
though mention has been made in regard to the application filed
D by the applicant for impleading the Chairman of this Tribunal as
a party-respondent, it must be assumed to have been rejected since
without the Chairman being made a party the case has been
disposed of. I think I should mention here that rightly the prayer
of the applicant in that regard has not been allowed, since the
Chairman in view of what is stated above does not appear to be a
E
necessary or proper party, .......... .
This proceeding which I would term to be an unfortunate one
so far as the dignity of the Tribunal is concerned gave occasion
for discussion on the conduct of the Chairman. The Chairman on
F account of his own indiscretion landed himself in the present
situation. Had he been discreet, he would not have landed himself
in the present soup or his conduct would not have become relevant
for discussion for ar(iving at the conclusion in regard to malafide
alleged against the Chief Secretary. The sequence of events which
are relied upon by the applicant to substantiate the allegation of
G malafide '?ac!,e against the Chief Secretary which brough't about
the impugned transfer became relevant for discussion and the
Chairman of the Tribunal caffiie to the picture .
................. I am also baffled as to what for the Chairman of this
H Tribunal against whom no notice of contempt had been issued
A.K. RAY v. STATE[J.S. VERMA, J.] 343
chose to appear before the High Court alongwith the Chief A
Secretary through common lawyer. It is suggested that he <lid so
only to bail out the Chief Secnaary from a diflicult situation. This
suggestion appears to be quite reasonable and acceptable ........ .
U nfortunatcly, for the Chairman of this Tribunal and the Chief
Secretary of the State Government, adverse comn1cnt5 were made
B
by the High Court and it was said that the aforesaid plea advanced
before the High Court was untrue and was an eyewash. ........ .
Applicant's assertion in this regard appear to be reasonable and
true. Events, prior and subsequent, to issuance of the impugned
order of transfer in respect of the applicant bear out such an
inference. c
I express my extreme unhappiness to be in a situation like this
an<l associate myself with the observations made in regard to the
aetiom of the Chairman of this Tribunal which became necessary
while dealing with the allegation of malafide advanced against the D
Chief Secretary, which again became necessary for disposal of the
present proceeding."
A bare perusal of the High Court's order dated 8.5.1992 referred
earlier, the letter dated 10.4.1992 of the appellant to the Chief Secretary
and the proceedings of the case before the Tribunal containing the note E
dated 29.5.1992 of the Chairman transferring the mater to be heard by
some one else in the Tribunal and later the order constituting the Division
Bench comprising of S.K. Mishra, Vice-Chairman and U.N. Mallik, Mem-
ber (Administrative) to hear the matter finally leaves no doubt that in
1naking the above observations against the appellant, the Division Bench F
of the Tribunal has completely misread the unambiguous language of these
documents to make the wholly unwarranted adverse remarks against the .
appellant without even notice to him. Appearance of the appellant before
the High Court in the contempt petition was on account of he being
responsible for the proper functioning of the Registry which is under the G
control of the Chairman of the Tribunal since the functioning of the
Registry at the Cuttack Bench of which D.N. Mishra was incharge was the
subject matter of that contempt petition. The Division Bench appears to
have been totally oblivious to the responsibility of the Chairman of the
· Tribunal in this behalf. Just as the responsibility for the proper functioning
of the Registry and control over it in the High Court is of the Chief Justice H
344 SUPREME COURT REPORTS (1995] SUPP. 4 S.C.R.
A alone by virtue of Article 229 and that in the Supreme Court of the Chief
.Justice of India by virtue of Article 146, so also it is the Chairman of an
Ad1ninistrative Tribunal who has the responsibility for proper functioning
of the Registry and he alone exercise direct control over it. Jn such a
situation, the appellant as Chairman of the Tribunal had a duty to explain
lo the High Court the actual position with regard to the functioning of the
B
Registry at the Cultack Bench to enable the High Court to decide properly
the contempt petition moved by the members of the Bar. This has been
unfairly described by the Division Bench of the Tribunal as undue zeal of
the Chairman. What we have said is sufficient to indicate the illegality and
impropriety of the observations made by the Division Bench of the
c Tribunal against the appellant as Chairman of the Tribunal. This is suffi-
cient to indicate that it is the duty of this Court lo expunge these unwar-
ranted remarks made unfairly against the appellant. We are informed that
the appellant as well as the Vice-Chairman and Member (Administra-
tive)who constituted the Division Bench of the Tribunal have all by now
D retired. It is, therefore, not necessary to discuss these remarks any further.
Before parting with this case, we consider it necessary to refer to the
observation in some earlier decisions of this Court ·in similar context
indicating the need for sobriety and restraint in making adverse and critical
comments. In Niranjan Patnaik v. Sashibhushan Kar & Anr. [1986] 2 SCR
E 470, in a similar context, after referring to earlier authorities, it was stated
as under :
"It is, therefore, settled law that harsh or disparaging remarks
arc not to be made against persons and authorities whose conduct
comes into consideration before courts of la\V unless it is real1y
F necessary for the decision of the case, as an integral part thereof
to animadvert on that conduct. We hold that the adverse remarks
made against the appellant were neither justified nor called for."
(at page 483)
G In State of Madhya Pradesh & Ors. v. Nandla/ Jaiswal & Ors., [1987] 1 SCR
1, one of the questions raised was the propriety of certain observations and
some disparaging remarks made by a learned Judge of the High Court in
his separate concurring opinion in a matter decided by a Division Bench.
While holding that those disparaging remarks were unwarranted, this Court
H expressed its strong disapproval of the same as follows :
AK. RAY v. STATE IJ.S. VERMA,J.] 345
11
Before \Ve part with this case we must express our strong A
disapproval of the observations made by B.M. Lal, .I. in paragraphs
1, 9, 17, 18, 19 and 34 of his concurring opinion. The learned Judge
inade sweeping observations attributing 111alafides1 corruption and
under-hand dealing to the State Government. These observations
arc in our opinion not at all justified by the record.
B
(at page 62)
"......... What the learned Judge has said is based entirely on
conjecture and suspicion - and approach which does not go well
with judicial disposition of a case. ........ C
(at page 63)
"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 D
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.
Here, in the present case, the observations made and strictures
passed by B.M. Lal, J. were totally unjustified and unwarranted E
and they ought not to have been made. "
(at page 66)
Against this Court inA.M. Mathur v. Pramod Kumar Gupta, [1990] 2
SCR 110, reiterated this position while expunging the disparaging remarks F
made against an advocate who was also the former Advocate General of
the State while dismissing a review petition. These disparaging remarks
were also contained only in the separate concurring order of one of the
learned Judges of the Division Bench. Incidentally, this matter was the
aftermath of Nandlal Jaiswal (supra) which made it worse. While expung- G
il'e the C.lsparaging remarks made by the learned .Judge in a separate
concurring order, this Court stated as under :
"It may be noted that C.P. Sen, J. dismissed the review petition
on the ground of maintainability, limitation and /ocm standi of the
petitioner. Thereafter the application wad filed to pass strictures H
346 SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.
A against the appellant in the light of the Vidhan Sabha proceedings.
B.M. Lal, J. Seems to have acceded to that request. No doubt each
Judge is independent to form an opinion of his own in deciding
cases or in any phase of the decisional function. But the facts of
the present case against the background of the views expressed by
this Court apropos to the earlier strictures against the Govern-
B ment, should have warned B.M. Lal, .I., no matter how clear he
was in his mind, not to criticise the appellant. The avoidance of
even the appearance of bitterness, so in1portant in a Judge required
him not to cast aspersions on the professional conduct of the
appellant."
c (at page 116)
"Judicial restraint and discipline are as necessary 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 a
D 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. 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 Legis-
E lature. 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 neither good for the judge nor for the judicial
process.
F The .Judges Bench is a seat of power. Not only do judges have
power to make binding decisions, their decisions legitimate the use
of power by other officials. The Judges have the absolute and
unchallenged control of the Court domain. But they cannot misuse
their authority by intemperate comments, undignified banter or
scathing criticism of counsel, parties or witnesses. We concede that
G 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 b<;
rna<lc agciinst persons or authorities whose conduct comes into
H consideration unless it is absolutely necessary for the decision of
AK. RAY v. STATE[J.S. VERMA,J.] 347
the case to animadvert on their conduct. (See (i) R.K. Lakshmanan A
v. A.K Srinivasan, [1976] 1 SCR 204 and (ii) Niranjan Patnaik ~
Sashibhushan Kar, [1986] 2 SCC 567 at 576)."
(at page 117)
'We therefore, allow the appeal and expunge all the remarks B
made by B.M. Lal, .T. against the ~ppellanl in the impugned order."
(at page 118)
What we have said above is nothing new and is only a reiteration of
the established norms of judicial propriety and restraint expected form' C
everyone discharging judicial functions. Use of intemperate language or
making disparaging remarks against any one unless that be the requirement
for deciding the case, is inconsistent with judicial behaviour. Written words
in judicial orders form permanent record which make it even more neces-
sary to practise self-restraint in exercise of judicial power while making D
written orders. It is helpful to recall this facet to remind ourselves and avoid
pitfalls arising even from provocation at times. The Division Bench ·of the
Tribunal overlooked this aspect and misread the documents in the. record
including the High Court's judgment to make disparaging remarks against
the appellant as Chairman of the Tribunal based on a non- existing foun-
dation. All the disparaging remarks in the impugned order. against the . E
appellant are, therefore, expunged. This being the limited scope of this
appeal, nothing else needs consideration. The appeal is allowed, accord-
ingly.
R.A. Appeal allowed.
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