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S. Saghir Ahmad, J.— Whether “judicial obstinacy” can be treated as a form of “bias” is the
question which we intend to answer in these appeals. As the answer depends upon the
peculiar facts involved in these cases, they are being examined in a little detail.
- A copy of the writ petition filed before the Calcutta High Court by the respondents a
second time (being Matter No. 1449 of 1987) has been filed before us. In order to indicate the
real controversy involved in that writ petition, the relevant paragraphs of that writ petition are
reproduced below:
“4. Your petitioners state that against the aforesaid illegalities, namely, the denial of
promotion seniority and other benefits to the petitioners as prescribed in law, a writ
application was filed on behalf of the petitioners before this Hon’ble Court which was
numbered as CO No. 6584(W) of 1984. After hearing of the parties the Hon’bleMr Justice
A.K. Sengupta was pleased to allow the said application of the petitioners directing the
authorities to give promotion on the basis of the seniority. His Lordship was further pleased to
direct the authorities to give promotion to the writ petitioners to the Subordinate Labour
Service w.e.f. 13th March, 1980. His Lordship was further pleased to direct the authorities to
give promotion to the petitioners to the West Bengal Subordinate Labour Service forthwith.
But against the said judgment of His Lordship Mr A.K. Sengupta an appeal having Tender
No. FMAT No. 3213 was preferred before this Hon’ble Court. The Division Bench after
hearing the parties was pleased to dispose of the said appeal directing the respondentauthorities to follow and/or to give promotions in accordance with the above prescribed rules.
Therefore the judgment and the order of the trial Judge stood upheld. Accordingly, pursuant
to the judgment of the trial court, the authorities promoted the writ petitioners on 17-4-1985
to the posts of Investigators/Inspectors under the West Bengal Subordinate Labour Service,
Labour Directorate, Government of West Bengal and the petitioners have been posted in
different places in the said posts where they are now serving. A copy of the judgment in CO
No. 6584(W) of 1984 passed by the Hon’bleMr Justice A.K. Sengupta annexed herewith and
along with the order passed by the Division Bench in FMAT No. 3213 of 1984 and marked as
Annexure ‘A’.” - Your petitioners state that now they have been promoted in the West Bengal Subordinate
Labour Service, but as per the order of this Hon’ble Court they are deemed to be promoted
and or in service since 13-3-1980. Accordingly, the petitioners are entitled to get the seniority
and also the monetary benefits of West Bengal Subordinate Labour Service with retrospective
effect from 13-3-1980. - Your petitioners state that there have been arrear dues to the petitioners since 13-3-1980.
The petitioners made several representations before the authorities for the payment of the said
arrear dues but the respondent-authorities have not paid the same to the petitioners. On 12-12-
1986, the petitioners made a written representation to Respondent 1 along with the statement
of arrear dues praying immediate payment of the said arrear dues from 13-3-1980 to 16-4-
1985 and in that letter demanding justice. The petitioners also pointed out that because of the
above non-payment of the arrear dues, the petitioners were facing acute financial troubles.
But uptil now the authorities have done nothing for the grant and/or payment of the said dues
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from 13-3-1980 to 16-4-1985 to the petitioners. A copy of the said representation dated 12-
12-1986 along with the statements of the said arrear dues are collectively marked as
Annexures ‘B’ and ‘B-1’ to this application. - Your petitioners state that the authorities denied equal opportunities of promotion to them.
The authorities gave promotions to West Bengal Subordinate Labour Service only from the
Upper Division Clerks, even some of these clerks were not confirmed. Thus the authorities
denied Computor Assistants and Labour Welfare workers of the Labour Department equal
promotion seniority and other benefits for a long time. Thus the whole activities regarding
promotion was totally illegal and/or mala fide. That is why the Hon’bleMr Justice A.K.
Sengupta in CO No. 6584(W) of 1984 was pleased to direct that the petitioners whose claim
for promotion accrued long ago should be deemed to be promoted to West Bengal
Subordinate Labour Service on and from 13-3-1980, because on that date many junior
persons and even unconfirmed Upper Division Clerks were promoted to the Labour Service.
But the petitioners were illegally deprived of the said promotion and/or seniority. Thus the
petitioners are entitled to the arrear financial benefits and seniority on and from 13-3-1980. - Your petitioners state that they made a series of representations before the authorities for
the promotion and payment of their arrear benefits since 13-3-1980, but the authorities had
not yet paid the said arrear. Thus the petitioners have been put to unnecessary financial
hardships by the aforesaid non-payment of arrear dues.” - The following prayer was made in the writ petition:
“10. Your petitioners humbly state and submit that the authorities illegally withheld their
promotion for a long time but only pursuant to the direction and/or order of this Hon’ble Court
they got promotion in the West Bengal Subordinate Labour Service which has been illegally
withheld for a long time. Therefore, the direction of this Hon’ble Court that the petitioners
should be deemed to be promoted since 13-3-1980 should be complied with by the authorities
by paying all arrear benefits and/or dues to the West Bengal Subordinate Labour Service to
the petitioners immediately, otherwise they will suffer irreparable loss and/or injury.” - The real question which was, therefore, involved in that writ petition was whether the
direction given by Mr Justice Ajit Kumar Sengupta on 21-8-1984 while disposing of the
earlier writ petition [CO No. 6584(W) of 1984], was in existence or had ceased to be an
operative direction after the disposal of FMAT No. 3213 of 1984 by a Division Bench on 17-
1-1985. The ultimate order passed by the Division Bench in that appeal has already been
extracted in the earlier part of the judgment which would show that the direction that the
respondents shall be promoted with effect from 13-3-1980 was set aside and was substituted
by a fresh direction that the cases of the respondents along with other eligible candidates for
promotion to the Subordinate Labour Service shall be considered in accordance with law and
the prescribed rules including the appointment rules. It was in pursuance of this direction that
the State Government considered the matter of promotion and by its order dated 16-4-1985, it
made promotions of the eligible candidates drawn from all the three sources (including the
respondents who had filed writ petition [CO No. 6584(W) of 1984], to various posts in the
Subordinate Labour Service. This order does not indicate that the respondents were promoted
with effect from 13-3-1980; maybe this was not indicated as that direction had been set aside
in appeal by the Division Bench.
197 - When the respondents claimed arrears of salary with effect from 13-3-1980 in pursuance
of the direction issued by Mr Justice Ajit Kumar Sengupta through a fresh petition (Matter
No. 1449 of 1987) filed in the Calcutta High Court, the learned Single Judge did not grant the
relief and instead observed that since the direction issued by Mr Justice Ajit Kumar Sengupta
was modified, it was for the State Government to consider their claims in accordance with the
Rules in terms of directions of the Division Bench (court of appeal). - An appeal against this judgment was disposed of by a Division Bench which included Mr
Justice Ajit Kumar Sengupta. The question which, therefore, arises is whether Mr Justice Ajit
Kumar Sengupta could sit in the Division Bench to decide the appeal against that judgment. - All judicial functionaries have necessarily to have an unflinching character to decide a
case with an unbiased mind. Judicial proceedings are held in open court to ensure
transparency. Access to judicial record by way of inspection by the litigant or his lawyer and
the facility of providing certified copies of that record are factors which not only ensure
transparency but also instil and inspire confidence in the impartiality of the court proceedings. - Unlike suits, proceedings under Article 226 of the Constitution are not conducted strictly
following the provisions contained in the Code of Civil Procedure but are held in accordance
with the procedure devised by the High Court itself under which a fair hearing is provided to
the parties concerned before a decision is rendered. In other words, principles of natural
justice are observed strictly in letter and spirit. One of the requirements of natural justice is
that the hearing should be done by a judge with an unbiased mind. - Bias may be defined as a preconceived opinion or a predisposition or predetermination to
decide a case or an issue in a particular manner, so much so that such predisposition does not
leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments
and renders the judge unable to exercise impartiality in a particular case. - Bias has many forms. It may be pecuniary bias, personal bias, bias as to subject-matter in
dispute, or policy bias etc. In the instant case, we are not concerned with any of these forms of
bias. We have to deal, as we shall presently see, a new form of bias, namely, bias on account
of judicial obstinacy. - Judges, unfortunately, are not infallible. As human beings, they can commit mistakes even
in the best of their judgments reflective of their hard labour, impartial things and objective
assessment of the problem put before them. In the matter of interpretation of statutory
provisions or while assessing the evidence in a particular case or deciding questions of law or
facts, mistakes may be committed bona fide which are corrected at the appellate stage. This
explains the philosophy behind the hierarchy of courts. Such a mistake can be committed
even by a judge of the High Court which are corrected in the letters patent appeal, if available. - If a judgment is overruled by the higher court, the judicial discipline requires that the
judge whose judgment is overruled must submit to that judgment. He cannot, in the same
proceedings or in collateral proceedings between the same parties, rewrite the overruled
judgment. Even if it was a decision on a pure question of law which came to be overruled, it
cannot be reiterated in the same proceedings at the subsequent stage by reason of the fact that
the judgment of the higher court which has overruled that judgment, not only binds the parties
to the proceedings but also the judge who had earlier rendered that decision. That judge may
have his occasion to reiterate his dogmatic views on a particular question of common law or
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constitutional law in some other case but not in the same case. If it is done, it would be
exhibitive of his bias in his own favour to satisfy his egoistic judicial obstinacy. - As pointed out earlier, an essential requirement of judicial adjudication is that the judge is
impartial and neutral and is in a position to apply his mind objectively to the facts of the case
put up before him. If he is predisposed or suffers from prejudices or has a biased mind, he
disqualifies himself from acting as a judge. But Frank, J. of the United States in Linahan, In
re [138 F 2d 650] says:
“If, 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 and no one will. The human mind,
even at infancy, is no blank piece of 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.”
[See also Griffith and Street, Principles of Administrative Law (1973 Edn.), p. 155; Judicial
Review of Administrative Action by de Smith (1980 Edn.), p. 272; II Administrative Law
Treatise by Davis (1958 Edn.), p. 130.] - These remarks imply a distinction between prejudging of facts specifically relating to a
party, as against preconceptions or predispositions about general questions of law, policy or
discretion. The implication is that though in the former case, a judge would disqualify
himself, in the latter case, he may not. But this question does not arise here and is left as it is. - This Court has already, innumerable times, beginning with its classic decision in A.K.
Kraipak v. Union of India [(1969) 2 SCC 262 : AIR 1970 SC 150] laid down the need of “fair
play” or “fair hearing” in quasi-judicial and administrative matters. The hearing has to be by a
person sitting with an unbiased mind. To the same effect is the decision in S.P. Kapoor
(Dr) v. State of H.P. [(1981) 4 SCC 716 : 1982 SCC (L&S) 14 : AIR 1981 SC 2181] In an
earlier decision in Mineral Development Ltd. v. State of Bihar [AIR 1960 SC 468 : (1960) 2
MLJ (SC) 16] it was held that the Revenue Minister, who had cancelled the petitioner’s
licence or the lease of certain land, could not have taken part in the proceedings for
cancellation of licence as there was political rivalry between the petitioner and the Minister,
who had also filed a criminal case against the petitioner. This principle has also been applied
in cases under labour laws or service laws, except where the cases were covered by the
doctrine of necessity. In Financial Commr. (Taxation), Punjab v. Harbhajan Singh [(1996) 9
SCC 281] the Settlement Commissioner was held to be not competent to sit over his own
earlier order passed as Settlement Officer under the Displaced Persons (Compensation &
Rehabilitation) Act, 1954. The maxim nemodebetessejudex in propriasuacausa was invoked
in Gurdip Singh v. State of Punjab [(1997) 10 SCC 641 : 1997 SCC (L&S) 1742] . - The above maxim as also the other principle based on the most frequently quoted dictum
of Lord Hewart, C.J. in R. v. Sussex JJ., ex p McCarthy [(1924) 1 KB 256 : 1923 All ER Rep
233] KB at p. 259, that
“it is of fundamental importance that justice should not only be done, but should manifestly
and undoubtedly be seen to be done”.
constitute the well-recognised rule against bias. - Bias, as pointed out earlier, is a condition of mind and, therefore, it may not always be
possible to furnish actual proof of bias. But the courts, for this reason, cannot be said to be in
a crippled state. There are many ways to discover bias; for example, by evaluating the facts
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and circumstances of the case or applying the tests of “real likelihood of bias” or “reasonable
suspicion of bias”. de Smith in Judicial Review of Administrative Action, 1980 Edn., pp. 262,
264, has explained that “reasonable suspicion” test looks mainly to outward appearances
while “real likelihood” test focuses on the court’s own evaluation of the probabilities. - In Metropolitan Properties Co. v. Lannon [(1968) 1 WLR 815 : (1968) 1 All ER 354] it
was observed “whether there was a real likelihood of bias or not has to be ascertained with
reference to right-minded persons; whether they would consider that there was a real
likelihood of bias”. Almost the same test has also been applied here in an old decision,
namely, in ManakLal v. DrPrem Chand Singhvi [AIR 1957 SC 425 : 1957 SCR 575] . In that
case, although the Court found that the Chairman of the Bar Council Tribunal appointed by
the Chief Justice of the Rajasthan High Court to enquire into the misconduct of ManakLal, an
advocate, on the complaint of one Prem Chand was not biased towards him, it was held that
he should not have presided over the proceedings to give effect to the salutary principle that
justice should not only be done, it should also be seen to be done in view of the fact that the
Chairman, who, undoubtedly, was a Senior Advocate and an ex-Advocate General, had, at
one time, represented Prem Chand in some case. These principles have had their evolution in
the field of administrative law but the courts performing judicial functions only cannot be
excepted from the rule of bias as the Presiding Officers of the court have to hear and decide
contentious issues with an unbiased mind. The maxim nemodebetessejudex in
propriasuacausa and the principle “justice should not only be done but should manifestly be
seen to be done” can be legitimately invoked in their cases. - Applying these principles in the instant case, it will be seen that although the judgment
passed by Mr Justice Ajit Kumar Sengupta in the first writ petition in which he had given a
direction that the respondents shall be promoted with effect from 13-3-1980 was set aside, he
(Mr Justice Ajit Kumar Sengupta), in the subsequent writ petition between the same parties,
gave a declaration that the respondents shall be treated to have been promoted with effect
from 13-3-1980. Significantly, such a declaration was not prayed for and what was prayed in
the subsequent writ petition was a direction to the State Government to pay arrears of salary
of the higher post with effect from 13-3-1980. To put it differently, in the first writ petition,
Mr Justice Ajit Kumar Sengupta commanded: “Promote the respondents with effect from 13-
3-1980;” in the second writ petition, he directed: “Treat the respondents as promoted with
effect from 13-3-1980.” There is hardly any difference between the two judgments. In fact,
the second writ petition constitutes a crude attempt to revive the directions passed by Mr
Justice Ajit Kumar Sengupta in the first judgment and, curiously, Mr Justice Ajit Kumar
Sengupta, sitting in the Division Bench, wrote a second time, a judgment which was already
overruled. He garnished the judgment by innocuously providing that arrears would not be
payable to the respondents nor will the respondents affect the seniority of others. But the
garniture cannot conceal the deceptive innocence as it is obvious, on a judicial scrutiny, that
the paramount purpose was to rewrite the overruled judgment. - In view of these facts, we are constrained to observe that it was not competent for Mr
Justice Ajit Kumar Sengupta to have presided over the Bench in which the impugned
judgment was passed as he had already expressed his opinion in the earlier writ petition which
was overruled. He should have disassociated himself from that Bench in keeping with the
high traditions of the institution so as to give effect to the rule that “justice should not only be
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done, it should manifestly be seen to have been done” apart from sitting in appeal, though
collaterally, over his own judgment. - The appeals are consequently allowed. The judgment and order dated 21-7-1992 passed
by the Division Bench of the Calcutta High Court is set aside and the writ petition (Matter
No. 1449 of 1987) is dismissed without any order as to costs.
