Adverse comments against a person who is not a party to the proceedings , damaging his reputation by the court is unwarranted and is liable to be expunged - Single Judge passed adverse comments against the C.M. and directed to recover the amount from his pocket also - when asked for expunge, the D.B. bench also confirmed the orders of the single judge stating that those are based on material on record - Apex court held that with out hearing the appellant , how the court can pass adverse remarks damaging his reputation which is not necessary to decided the dispute as it is well settled law and as such the apex court set aside the orders of single judge and D.B. of high court =
whether the remarks were really necessary to render the decision by
the learned single Judge and the finding recorded by the Division
Bench that the observations are based on the material on record and
they do not cause any prejudice, are legally sustainable. As far
as finding of the Division Bench is concerned that they are based
on materials brought on record is absolutely unjustified in view of
the following principles laid down in Mohammad Naim (supra): -
“It has been judicially recognized that in the matter of making
disparaging remarks against persons or authorities whose conduct
comes into consideration before courts of law in cases to be
decided by them, it is relevant to consider
(a) whether the
party whose conduct is in question is before the court or has an
opportunity of explaining or defending himself;
(b) whether
there is evidence on record bearing on that conduct justifying
the remarks; and
(c) whether it is necessary for the decision of
the case, as an integral part thereof, to animadvert on that
conduct.”
13. On a perusal of the order we find that two aspects are clear,
namely, (i) that the appellant was not before the court, and (ii)
by no stretch of logic the observations and the directions were
required to decide the lis. We are disposed to think so as we find
that the learned single Judge has opined that the order of
suspension was unjustified and that is why it was revoked.
“The petitioner is also justified in making a grievance that
first the Chief Minister had suspended him on the basis of a
loose talk in the press conference and thereafter the officials
of the Government have attempted to justify their own mistakes
on the one pretext or the other. The petitioner would term this
case to be “a proof of worst ugly look of Indian democracy”. He
may be an aggrieved person but his anger is justified to refer
this treatment to be an ugly face of democracy. Is not it
dictatorial display of power in democratic set up? Final order
is yet to be passed regarding this charge sheet. It is orally
pointed out that the charge sheet is finalized on 16.9.2009. It
is done without holding any enquiry or associating the
petitioner in any manner. How can this be sustained in this
background?”
xxx xxx xxx
“Chief Minister was bound to inform himself of the well known
maxim “be you ever so high, the law is above you”.
xxx xxx xxx
“The respondents, thus, have made themselves fully responsible
for this plight of the petitioner on account of the illegalities
that have been pointed out and which the respondents have failed
to justify in any cogent or reasonable manner. They all are to
be held accountable for this. This would include even the then
Chief Minister, who initiated this illegal process and did not
intervene to correct the illegality ever thereafter.”
xxx xxx xxx
“The interest awardable shall be recovered from all the officers
and including the Chief Minister, who were either responsible
for placing the petitioner under suspension or in perpetuating
the illegality and had unnecessarily charged and harassed the
petitioner.”
xxx xxx xxx
“Liberty is, therefore, given to the petitioner to seek
compensation for the harassment caused to him by approaching any
appropriate Forum, including Civil Court, where he can seek this
compensation even from the then Chief Minister.”
In State of Bihar and another v. P.P. Sharma, IAS and another[1],
this Court has laid down that the person against whom mala fides or
bias is imputed should be impleaded as a party respondent to the
proceeding and be given an opportunity to meet the allegations. In
his absence no enquiry into the allegations should be made, for
such an enquiry would tantamount to violative of the principles of
natural justice as it amounts to condemning a person without
affording an opportunity of hearing.
9. In Testa Setalvad and another v. State of Gujarat and others[2] the
High Court had made certain caustic observations casting serious
aspersions on the appellants therein, though they were not parties
before the High Court. Verifying the record that the appellants
therein were not parties before the High Court, this Court
observed: -
“It is beyond comprehension as to how the learned Judges in the
High Court could afford to overlook such a basic and vitally
essential tenet of the “rule of law”, that no one should be
condemned unheard, and risk themselves to be criticized for
injudicious approach and/or render their decisions vulnerable
for challenge on account of violating judicial norms and
ethics.”
And again: -
“Time and again this Court has deprecated the practice of making
observations in judgments, unless the persons in respect of whom
comments and criticisms were being made were parties to the
proceedings, and further were granted an opportunity of having
their say in the matter, unmindful of the serious repercussions
they may entail on such persons.”
In view of the aforesaid analysis, we have no hesitation in
holding that disparaging remarks, as recorded by the learned single
Judge, are not necessary for arriving at the decision which he has
rendered, the same being not an integral part and further that
could not have been done when the appellant was not a party before
the court and also he was never afforded an opportunity to explain
his conduct, and the affirmation of the same by the Division Bench
on the foundation that it has not caused any prejudice and he can
fully defend himself when a subsequent litigation is instituted,
are legally unacceptable. Accordingly, we expunge the extracted
remarks hereinbefore and also any remarks which have been made that
are likely to affect the reputation of the appellant. Since, the
appeal is confined only to expunging of adverse remarks, the same
is allowed. There shall be no order as to costs.
2014 (January part) judis.nic.in/supremecourt/filename=41195
ANIL R. DAVE, DIPAK MISRA
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1785 OF 2014
(Arising out of S.L.P. (C) No. 14409 of 2010)
Om Prakash Chautala … Appellant
Versus
Kanwar Bhan and others …Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
1. Reputation is fundamentally a glorious amalgam and unification of
virtues which makes a man feel proud of his ancestry and satisfies
him to bequeath it as a part of inheritance on the posterity. It is
a nobility in itself for which a conscientious man would never
barter it with all the tea of China or for that matter all the
pearls of the sea. The said virtue has both horizontal and
vertical qualities. When reputation is hurt, a man is half-dead.
It is an honour which deserves to be equally preserved by the down
trodden and the privileged. The aroma of reputation is an
excellence which cannot be allowed to be sullied with the passage
of time. The memory of nobility no one would like to lose; none
would conceive of it being atrophied. It is dear to life and on
some occasions it is dearer than life. And that is why it has
become an inseparable facet of Article 21 of the Constitution. No
one would like to have his reputation dented. One would like to
perceive it as an honour rather than popularity. When a court
deals with a matter that has something likely to affect a person’s
reputation, the normative principles of law are to be cautiously
and carefully adhered to. The advertence has to be sans emotion
and sans populist perception, and absolutely in accord with the
doctrine of audi alteram partem before anything adverse is said.
2. We have commenced with aforesaid prefatory note because the
centripodal question that has eminently emanated for consideration
in this appeal, by special leave, is
whether the judgment and order
passed by the learned single Judge of the High Court of Punjab and
Haryana at Chandigarh in CWP No. 12384 of 2008 commenting on the
conduct of the appellant and further directing recovery of interest
component awarded to the employee, the first respondent herein,
from the present appellant and also to realize the cost and seek
compensation in appropriate legal forum, including civil court,
though the appellant was not arrayed as a party to the writ
petition, and denial of expunction of the aforesaid observations
and directions by the Division Bench in L.P.A. No. 1456 of 2009 on
the foundation that the same are based on the material available on
record and, in any case, grant of liberty to claim compensation or
interest could not be held to be a stricture causing prejudice to
the appellant who would have full opportunity of defending himself
in any proceeding which may be brought by the respondent for
damages or recovery of interest, is legally defensible or bound to
founder on the ground that the appellant was not impleaded as a
respondent to the proceeding. Be it noted, the Division Bench has
also opined that the observations made by the learned single Judge
are not conclusive and no prejudice has been caused to the
appellant, the then Chief Minister of the State of Haryana.
3. Filtering the unnecessary details, the facts which are to be
exposited are that the first respondent was working as Assistant
Registrar of Cooperative Societies in the State of Haryana. On
4.2.2001 during a state function “Sarkar Apke Dwar” at Jagadhari
constituency the appellant received a complaint from some person in
the public, including the elected representative, about the working
of the respondent No.1. The appellant after considering the verbal
complaint announced the suspension of the first respondent during
the press conference on the same day. On 06.02.2001 the first
respondent was placed under suspension by the letter of the
Financial Commissioner & Secretary to Govt. of Haryana, Cooperation
Department, Chandigarh which was followed by charge sheet dated
27.03.2002. The first respondent filed CWP No. 16025 of 2001
against the suspension order which was disposed of on 20.03.2002
with direction to the Government. On 28.03.2002 the 1st respondent
was reinstated pending inquiry. After issuance of charge sheet and
revocation of the suspension order, the first respondent submitted
his reply on 5.6.2002.
4. As the facts would undrape, nothing happened thereafter and he
stood superannuated on 31.01.2005 and was granted provisional
pension, provident fund and amount of Group Insurance Claim but
pension as due and other retiral benefits like gratuity, leave
encashment, commutation of other leaves, etc. were withheld due to
pendency of disciplinary proceedings. On 6.2.2007 the first
respondent filed CWP No. 2243 of 2007 which was disposed of by the
High Court directing the government to complete the enquiry within
a period of six months from the date of receipt of copy of the
order. As the enquiry was not concluded within the stipulated
time, the employee preferred CWP No. 12384 of 2008. The learned
single Judge vide judgment and order dated 20.10.2009 allowed the
writ petition and set aside the charge-sheet and the punishment
with further directions to release all the pension and pensionary
benefits due to the first respondent within a period of one month
with interest @ 10 % p.a. from the due date to the date of payment.
In course of judgment the learned single Judge made certain
observations against the appellant herein.
5. Grieved by the observations and inclusive directions made in the
judgment the appellant preferred LPA No. 1456 of 2009. The
contentions raised by the appellant in the intra-court appeal that
the adverse remarks were not at all necessary to adjudicate upon
the issue involved in the matter, and further when he was not
impleaded as a party to the writ petition recording of such
observations was totally impermissible, as it fundamentally
violated the principles of natural justice, were not accepted by
the Division Bench as a consequence of which the appeal did not
meet with success.
6. We have heard Mr. P.P. Rao, learned senior counsel for the
appellant and Mr. Hitesh Malik, Additional Advocate General
appearing for the State. Despite service of notice there is no
appearance on behalf of the private respondent, that is, respondent
No. 1.
7. As has been indicated earlier, the appellant was not a party to the
proceeding. It is manifest that the learned single Judge has made
certain disparaging remarks against the appellant and, in fact, he
has been also visited with certain adverse consequences.
Submission of Mr. P.P. Rao, learned senior counsel, is that the
observations and the directions are wholly unsustainable when the
appellant was not impleaded as a party to the proceeding and
further they are totally unwarranted for the adjudication of the
controversy that travelled to the Court.
8. In State of Bihar and another v. P.P. Sharma, IAS and another[1],
this Court has laid down that the person against whom mala fides or
bias is imputed should be impleaded as a party respondent to the
proceeding and be given an opportunity to meet the allegations. In
his absence no enquiry into the allegations should be made, for
such an enquiry would tantamount to violative of the principles of
natural justice as it amounts to condemning a person without
affording an opportunity of hearing.
9. In Testa Setalvad and another v. State of Gujarat and others[2] the
High Court had made certain caustic observations casting serious
aspersions on the appellants therein, though they were not parties
before the High Court. Verifying the record that the appellants
therein were not parties before the High Court, this Court
observed: -
“It is beyond comprehension as to how the learned Judges in the
High Court could afford to overlook such a basic and vitally
essential tenet of the “rule of law”, that no one should be
condemned unheard, and risk themselves to be criticized for
injudicious approach and/or render their decisions vulnerable
for challenge on account of violating judicial norms and
ethics.”
And again: -
“Time and again this Court has deprecated the practice of making
observations in judgments, unless the persons in respect of whom
comments and criticisms were being made were parties to the
proceedings, and further were granted an opportunity of having
their say in the matter, unmindful of the serious repercussions
they may entail on such persons.”
10. In State of W.B. and others v. Babu Chakraborthy
[3] the principle was reiterated by stating that the High Court was
not justified and correct in passing observations and strictures
against the appellants 2 and 3 therein without affording an
opportunity of being heard.
11. In Dr. Dilip Kumar Deka and another v. State of Assam and
another[4], after referring to the authorities in State of Uttar
Pradesh v. Mohammad Naim[5], Jage Ram v. Hans Raj Midha[6], R.K.
Lakshmanan v. A.K. Srinivasan[7] and Niranjan Patnaik v.
Sashibhusan Kar[8], this Court opined thus: -
“7. We are surprised to find that in spite of the above catena
of decisions of this Court, the learned Judge did not, before
making the remarks, give any opportunity to the appellants, who
were admittedly not parties to the revision petition, to defend
themselves. It cannot be gainsaid that the nature of remarks
the learned Judge has made, has cast a serious aspersion on the
appellants affecting their character and reputation and may,
ultimately affect their career also. Condemnation of the
appellants without giving them an opportunity of being heard was
a complete negation of the fundamental principle of natural
justice.”
12. At this juncture, it may be clearly stated that singularly on the
basis of the aforesaid principle the disparaging remarks and
directions, which are going to be referred to hereinafter, deserve
to be annulled but we also think it seemly to advert to the facet
whether the remarks were really necessary to render the decision by
the learned single Judge and the finding recorded by the Division
Bench that the observations are based on the material on record and
they do not cause any prejudice, are legally sustainable. As far
as finding of the Division Bench is concerned that they are based
on materials brought on record is absolutely unjustified in view of
the following principles laid down in Mohammad Naim (supra): -
“It has been judicially recognized that in the matter of making
disparaging remarks against persons or authorities whose conduct
comes into consideration before courts of law in cases to be
decided by them, it is relevant to consider
(a) whether the
party whose conduct is in question is before the court or has an
opportunity of explaining or defending himself;
(b) whether
there is evidence on record bearing on that conduct justifying
the remarks; and
(c) whether it is necessary for the decision of
the case, as an integral part thereof, to animadvert on that
conduct.”
13. On a perusal of the order we find that two aspects are clear,
namely, (i) that the appellant was not before the court, and (ii)
by no stretch of logic the observations and the directions were
required to decide the lis. We are disposed to think so as we find
that the learned single Judge has opined that the order of
suspension was unjustified and that is why it was revoked. He has
also ruled that there has been arbitrary exercise of power which
was amenable to judicial review and, more so, when the charges were
dropped against the employee. Commenting on the second charge-
sheet dated 15.3.2004 the learned single Judge, referring to the
decisions in State of Andhra Pradesh v. N. Radhakishan[9], State of
Punjab and others v. Chaman Lal Goyal[10], The State of Madhya
Pradesh v. Bani Singh and another[11] and P.V. Mahadevan v. M.D.
T.N. Housing Board[12], thought it appropriate to quash the same on
the ground of delay. The conclusion could have been arrived at
without making series of comments on the appellant, who, at the
relevant time, was the Chief Minister of the State.
14. At this juncture, we think it apt to point out some of the
observations made against the appellant: -
“Arrogance of power by the Chief Minister seems to be at play in
this case”
xxx xxx xxx
“The petitioner is also justified in making a grievance that
first the Chief Minister had suspended him on the basis of a
loose talk in the press conference and thereafter the officials
of the Government have attempted to justify their own mistakes
on the one pretext or the other. The petitioner would term this
case to be “a proof of worst ugly look of Indian democracy”. He
may be an aggrieved person but his anger is justified to refer
this treatment to be an ugly face of democracy. Is not it
dictatorial display of power in democratic set up? Final order
is yet to be passed regarding this charge sheet. It is orally
pointed out that the charge sheet is finalized on 16.9.2009. It
is done without holding any enquiry or associating the
petitioner in any manner. How can this be sustained in this
background?”
xxx xxx xxx
“Chief Minister was bound to inform himself of the well known
maxim “be you ever so high, the law is above you”.
xxx xxx xxx
“The respondents, thus, have made themselves fully responsible
for this plight of the petitioner on account of the illegalities
that have been pointed out and which the respondents have failed
to justify in any cogent or reasonable manner. They all are to
be held accountable for this. This would include even the then
Chief Minister, who initiated this illegal process and did not
intervene to correct the illegality ever thereafter.”
xxx xxx xxx
“The interest awardable shall be recovered from all the officers
and including the Chief Minister, who were either responsible
for placing the petitioner under suspension or in perpetuating
the illegality and had unnecessarily charged and harassed the
petitioner.”
xxx xxx xxx
“Liberty is, therefore, given to the petitioner to seek
compensation for the harassment caused to him by approaching any
appropriate Forum, including Civil Court, where he can seek this
compensation even from the then Chief Minister.”
15. On a studied scrutiny of the judgment in entirety we have no
hesitation in holding that the observations made by the learned
single Judge were really not necessary as an integral part for the
decision of the case as stated in Mohammad Naim’s case. Needless
to say, once the observations are not justified, as a natural
corollary, the directions have to be treated as sensitively
susceptible.
16. In this context, it is necessary to state about the role of a Judge
and the judicial approach. In State of M.P. v. Nandlal
Jaiswal[13], Bhagwati, CJ, speaking for the court expressed strong
disapproval of the strictures made by the learned Judge in these
terms: -
“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
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.”
17. In A.M. Mathur v. Pramod Kumar Gupta and others[14] the Court
observed that judicial restraint and discipline are necessary to
the orderly administration of justice. The duty of restraint and
the humility of function has to be the constant theme for a Judge,
for the said quality in decision making is as much necessary for
Judges to command respect as to protect the independence of the
judiciary. Further proceeding the two-Judge Bench stated thus: -
“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 the legislature. 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 be neither good for the judge nor for the
judicial process.”
18. In Amar Pal Singh v. State of Uttar Pradesh and another[15], it has
been emphasized that intemperate language should be avoided in the
judgments and while penning down the same the control over the
language should not be forgotten and a committed comprehensive
endeavour has to be made to put the concept to practice so that as
a conception it gets concretized and fructified.
19. It needs no special emphasis to state that a Judge is not to be
guided by any kind of notion. The decision making process expects
a Judge or an adjudicator to apply restraint, ostracise perceptual
subjectivity, make one’s emotions subservient to one’s reasoning
and think dispassionately. He is expected to be guided by the
established norms of judicial process and decorum. A judgment may
have rhetorics but the said rhetoric has to be dressed with reason
and must be in accord with the legal principles. Otherwise a mere
rhetoric, especially in a judgment, may likely to cause prejudice
to a person and courts are not expected to give any kind of
prejudicial remarks against a person, especially so, when he is not
a party before it. In that context, the rhetoric becomes sans
reason, and without root. It is likely to blinden the thinking
process. A Judge is required to remember that humility and respect
for temperance and chastity of thought are at the bedrock of
apposite expression. In this regard, we may profitably refer to a
passage from Frankfurter, Felix, in Clark, Tom C.,[16]:
“For the highest exercise of judicial duty is to subordinate
one’s personal pulls and one’s private views to the law of which
we are all guardians – those impersonal convictions that make a
society a civilized community, and not the victims of personal
rule,”
20. The said learned Judge had said: -
“What becomes decisive to a Justice’s functioning on the Court
in the large area within which his individuality moves is his
general attitude towards law, the habits of mind that he has
formed or is capable of unforming, his capacity for detachment,
his temperament or training for putting his passion behind his
judgment instead of in front of it.[17]”
21. Thus, a Judge should abandon his passion. He must constantly remind
himself that he has a singular master “duty to truth” and such
truth is to be arrived at within the legal parameters. No heroism,
no rehtorics.
22. Another facet gaining significance and deserves to be adverted to,
when caustic observations are made which are not necessary as an
integral part of adjudication and it affects the person’s
reputation – a cherished right under Article 21 of the
Constitution. In Umesh Kumar v. State of Andhra Pradesh and
another[18] this Court has observed: -
“Personal rights of a human being include the right of
reputation. A good reputation is an element of personal
security and is protected by the Constitution equally with the
right to the enjoyment of life, liberty and property.
Therefore, it has been held to be a necessary element in regard
to right to life of a citizen under Article 21 of the
Constitution. The International Covenant on Civil and Political
Rights, 1966 recognises the right to have opinions and the right
to freedom of expression under Article 19 is subject to the
right of reputation of others.”
23. In Kiran Bedi v. Committee of Inquiry and another[19] this Court
reproduced the following observations from the decision in D.F.
Marion v. Davis[20]:
“25. … ‘The right to the enjoyment of a private reputation,
unassailed by malicious slander is of ancient origin, and is
necessary to human society. A good reputation is an element of
personal security, and is protected by the Constitution equally
with the right to the enjoyment of life, liberty, and property.”
24. In Vishwanath Agrawal v. Sarla Vishwanath Agrawal[21], although in
a different context, while dealing with the aspect of reputation,
this Court has observed that reputation is not only the salt of
life, but also the purest treasure and the most precious perfume of
life. It is extremely delicate and a cherished value this side of
the grave. It is a revenue generator for the present as well as for
the posterity.”
25. In Mehmood Nayyar Azam v. State of Chhattisgarh and others[22] this
Court has ruled that the reverence of life is insegregably
associated with the dignity of a human being who is basically
divine, not servile. A human personality is endowed with potential
infinity and it blossoms when dignity is sustained. The sustenance
of such dignity has to be the superlative concern of every
sensitive soul. The essence of dignity can never be treated as a
momentary spark of light or, for that matter, “a brief candle”, or
“a hollow bubble”. The spark of life gets more resplendent when man
is treated with dignity sans humiliation, for every man is expected
to lead an honourable life which is a splendid gift of “creative
intelligence”. When a dent is created in the reputation, humanism
is paralysed.
26. In Board of Trustees of the Port of Bombay v. Dilipkumar
Raghavendranath Nadkarni and others[23], while dealing with the
value of reputation, a two-Judge Bench expressed thus: -
“The expression ‘life’ has a much wider meaning. Where
therefore the outcome of a departmental enquiry is likely to
adversely affect reputation or livelihood of a person, some of
the finer graces of human civilization which make life worth
living would be jeopardized and the same can be put in jeopardy
only by law which inheres fair procedures. In this context one
can recall the famous words of Chapter II of Bhagwad-Gita :
Sambhavitasya Cha Kirti Marnadati Richyate”
27. The aforesaid principle has been reiterated in State of Maharashtra
v. Public Concern for Governance Trust and others[24].
28. In view of the aforesaid analysis, we have no hesitation in
holding that disparaging remarks, as recorded by the learned single
Judge, are not necessary for arriving at the decision which he has
rendered, the same being not an integral part and further that
could not have been done when the appellant was not a party before
the court and also he was never afforded an opportunity to explain
his conduct, and the affirmation of the same by the Division Bench
on the foundation that it has not caused any prejudice and he can
fully defend himself when a subsequent litigation is instituted,
are legally unacceptable. Accordingly, we expunge the extracted
remarks hereinbefore and also any remarks which have been made that
are likely to affect the reputation of the appellant. Since, the
appeal is confined only to expunging of adverse remarks, the same
is allowed. There shall be no order as to costs.
……………………….J.
[Anil R. Dave]
……………………….J.
[Dipak Misra]
New Delhi;
January 31, 2014.
-----------------------
[1] 1992 Supp (1) SCC 222
[2] (2004) 10 SCC 88
[3] (2004) 12 SCC 201
[4] (1996) 6 SCC 234
[5] AIR 1964 SC 703
[6] (1972) 1 SCC 181
[7] (1975) 2 SCC 466
[8] (1986) 2 SCC 569
[9] (1998) 4 SCC 154
[10] (1995) 2 SCC 570
[11] JT 1990 (2) SC 54
[12] (2005) 6 SCC 636
[13] (1986) 4 SCC 566
[14] (1990) 2 SCC 533
[15] (2012) 6 SCC 491
[16] Mr. Justice Frankfurter : ‘A Heritage for all Who Love the Law,’ 51
A.B.A.J. 330, 332 (1965)
[17] -FRANKFURTER, Felix, Foreword, to Memorial issue for Robert H.
Jackson, 55 Columbia Law Review (April, 1955) P. 436
[18] (2013) 10 SCC 591
[19] (1989) 1 SCC 494
[20] 217 Ala 16 : 114 So 357 : 55 ALR 171 (1927)
[21] (2012) 7 SCC 288
[22] (2012) 8 SCC 1
[23] (1983) 1 SCC 124
[24] (2007) 3 SCC 587
whether the remarks were really necessary to render the decision by
the learned single Judge and the finding recorded by the Division
Bench that the observations are based on the material on record and
they do not cause any prejudice, are legally sustainable. As far
as finding of the Division Bench is concerned that they are based
on materials brought on record is absolutely unjustified in view of
the following principles laid down in Mohammad Naim (supra): -
“It has been judicially recognized that in the matter of making
disparaging remarks against persons or authorities whose conduct
comes into consideration before courts of law in cases to be
decided by them, it is relevant to consider
(a) whether the
party whose conduct is in question is before the court or has an
opportunity of explaining or defending himself;
(b) whether
there is evidence on record bearing on that conduct justifying
the remarks; and
(c) whether it is necessary for the decision of
the case, as an integral part thereof, to animadvert on that
conduct.”
13. On a perusal of the order we find that two aspects are clear,
namely, (i) that the appellant was not before the court, and (ii)
by no stretch of logic the observations and the directions were
required to decide the lis. We are disposed to think so as we find
that the learned single Judge has opined that the order of
suspension was unjustified and that is why it was revoked.
“The petitioner is also justified in making a grievance that
first the Chief Minister had suspended him on the basis of a
loose talk in the press conference and thereafter the officials
of the Government have attempted to justify their own mistakes
on the one pretext or the other. The petitioner would term this
case to be “a proof of worst ugly look of Indian democracy”. He
may be an aggrieved person but his anger is justified to refer
this treatment to be an ugly face of democracy. Is not it
dictatorial display of power in democratic set up? Final order
is yet to be passed regarding this charge sheet. It is orally
pointed out that the charge sheet is finalized on 16.9.2009. It
is done without holding any enquiry or associating the
petitioner in any manner. How can this be sustained in this
background?”
xxx xxx xxx
“Chief Minister was bound to inform himself of the well known
maxim “be you ever so high, the law is above you”.
xxx xxx xxx
“The respondents, thus, have made themselves fully responsible
for this plight of the petitioner on account of the illegalities
that have been pointed out and which the respondents have failed
to justify in any cogent or reasonable manner. They all are to
be held accountable for this. This would include even the then
Chief Minister, who initiated this illegal process and did not
intervene to correct the illegality ever thereafter.”
xxx xxx xxx
“The interest awardable shall be recovered from all the officers
and including the Chief Minister, who were either responsible
for placing the petitioner under suspension or in perpetuating
the illegality and had unnecessarily charged and harassed the
petitioner.”
xxx xxx xxx
“Liberty is, therefore, given to the petitioner to seek
compensation for the harassment caused to him by approaching any
appropriate Forum, including Civil Court, where he can seek this
compensation even from the then Chief Minister.”
In State of Bihar and another v. P.P. Sharma, IAS and another[1],
this Court has laid down that the person against whom mala fides or
bias is imputed should be impleaded as a party respondent to the
proceeding and be given an opportunity to meet the allegations. In
his absence no enquiry into the allegations should be made, for
such an enquiry would tantamount to violative of the principles of
natural justice as it amounts to condemning a person without
affording an opportunity of hearing.
9. In Testa Setalvad and another v. State of Gujarat and others[2] the
High Court had made certain caustic observations casting serious
aspersions on the appellants therein, though they were not parties
before the High Court. Verifying the record that the appellants
therein were not parties before the High Court, this Court
observed: -
“It is beyond comprehension as to how the learned Judges in the
High Court could afford to overlook such a basic and vitally
essential tenet of the “rule of law”, that no one should be
condemned unheard, and risk themselves to be criticized for
injudicious approach and/or render their decisions vulnerable
for challenge on account of violating judicial norms and
ethics.”
And again: -
“Time and again this Court has deprecated the practice of making
observations in judgments, unless the persons in respect of whom
comments and criticisms were being made were parties to the
proceedings, and further were granted an opportunity of having
their say in the matter, unmindful of the serious repercussions
they may entail on such persons.”
In view of the aforesaid analysis, we have no hesitation in
holding that disparaging remarks, as recorded by the learned single
Judge, are not necessary for arriving at the decision which he has
rendered, the same being not an integral part and further that
could not have been done when the appellant was not a party before
the court and also he was never afforded an opportunity to explain
his conduct, and the affirmation of the same by the Division Bench
on the foundation that it has not caused any prejudice and he can
fully defend himself when a subsequent litigation is instituted,
are legally unacceptable. Accordingly, we expunge the extracted
remarks hereinbefore and also any remarks which have been made that
are likely to affect the reputation of the appellant. Since, the
appeal is confined only to expunging of adverse remarks, the same
is allowed. There shall be no order as to costs.
2014 (January part) judis.nic.in/supremecourt/filename=41195
ANIL R. DAVE, DIPAK MISRA
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1785 OF 2014
(Arising out of S.L.P. (C) No. 14409 of 2010)
Om Prakash Chautala … Appellant
Versus
Kanwar Bhan and others …Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
1. Reputation is fundamentally a glorious amalgam and unification of
virtues which makes a man feel proud of his ancestry and satisfies
him to bequeath it as a part of inheritance on the posterity. It is
a nobility in itself for which a conscientious man would never
barter it with all the tea of China or for that matter all the
pearls of the sea. The said virtue has both horizontal and
vertical qualities. When reputation is hurt, a man is half-dead.
It is an honour which deserves to be equally preserved by the down
trodden and the privileged. The aroma of reputation is an
excellence which cannot be allowed to be sullied with the passage
of time. The memory of nobility no one would like to lose; none
would conceive of it being atrophied. It is dear to life and on
some occasions it is dearer than life. And that is why it has
become an inseparable facet of Article 21 of the Constitution. No
one would like to have his reputation dented. One would like to
perceive it as an honour rather than popularity. When a court
deals with a matter that has something likely to affect a person’s
reputation, the normative principles of law are to be cautiously
and carefully adhered to. The advertence has to be sans emotion
and sans populist perception, and absolutely in accord with the
doctrine of audi alteram partem before anything adverse is said.
2. We have commenced with aforesaid prefatory note because the
centripodal question that has eminently emanated for consideration
in this appeal, by special leave, is
whether the judgment and order
passed by the learned single Judge of the High Court of Punjab and
Haryana at Chandigarh in CWP No. 12384 of 2008 commenting on the
conduct of the appellant and further directing recovery of interest
component awarded to the employee, the first respondent herein,
from the present appellant and also to realize the cost and seek
compensation in appropriate legal forum, including civil court,
though the appellant was not arrayed as a party to the writ
petition, and denial of expunction of the aforesaid observations
and directions by the Division Bench in L.P.A. No. 1456 of 2009 on
the foundation that the same are based on the material available on
record and, in any case, grant of liberty to claim compensation or
interest could not be held to be a stricture causing prejudice to
the appellant who would have full opportunity of defending himself
in any proceeding which may be brought by the respondent for
damages or recovery of interest, is legally defensible or bound to
founder on the ground that the appellant was not impleaded as a
respondent to the proceeding. Be it noted, the Division Bench has
also opined that the observations made by the learned single Judge
are not conclusive and no prejudice has been caused to the
appellant, the then Chief Minister of the State of Haryana.
3. Filtering the unnecessary details, the facts which are to be
exposited are that the first respondent was working as Assistant
Registrar of Cooperative Societies in the State of Haryana. On
4.2.2001 during a state function “Sarkar Apke Dwar” at Jagadhari
constituency the appellant received a complaint from some person in
the public, including the elected representative, about the working
of the respondent No.1. The appellant after considering the verbal
complaint announced the suspension of the first respondent during
the press conference on the same day. On 06.02.2001 the first
respondent was placed under suspension by the letter of the
Financial Commissioner & Secretary to Govt. of Haryana, Cooperation
Department, Chandigarh which was followed by charge sheet dated
27.03.2002. The first respondent filed CWP No. 16025 of 2001
against the suspension order which was disposed of on 20.03.2002
with direction to the Government. On 28.03.2002 the 1st respondent
was reinstated pending inquiry. After issuance of charge sheet and
revocation of the suspension order, the first respondent submitted
his reply on 5.6.2002.
4. As the facts would undrape, nothing happened thereafter and he
stood superannuated on 31.01.2005 and was granted provisional
pension, provident fund and amount of Group Insurance Claim but
pension as due and other retiral benefits like gratuity, leave
encashment, commutation of other leaves, etc. were withheld due to
pendency of disciplinary proceedings. On 6.2.2007 the first
respondent filed CWP No. 2243 of 2007 which was disposed of by the
High Court directing the government to complete the enquiry within
a period of six months from the date of receipt of copy of the
order. As the enquiry was not concluded within the stipulated
time, the employee preferred CWP No. 12384 of 2008. The learned
single Judge vide judgment and order dated 20.10.2009 allowed the
writ petition and set aside the charge-sheet and the punishment
with further directions to release all the pension and pensionary
benefits due to the first respondent within a period of one month
with interest @ 10 % p.a. from the due date to the date of payment.
In course of judgment the learned single Judge made certain
observations against the appellant herein.
5. Grieved by the observations and inclusive directions made in the
judgment the appellant preferred LPA No. 1456 of 2009. The
contentions raised by the appellant in the intra-court appeal that
the adverse remarks were not at all necessary to adjudicate upon
the issue involved in the matter, and further when he was not
impleaded as a party to the writ petition recording of such
observations was totally impermissible, as it fundamentally
violated the principles of natural justice, were not accepted by
the Division Bench as a consequence of which the appeal did not
meet with success.
6. We have heard Mr. P.P. Rao, learned senior counsel for the
appellant and Mr. Hitesh Malik, Additional Advocate General
appearing for the State. Despite service of notice there is no
appearance on behalf of the private respondent, that is, respondent
No. 1.
7. As has been indicated earlier, the appellant was not a party to the
proceeding. It is manifest that the learned single Judge has made
certain disparaging remarks against the appellant and, in fact, he
has been also visited with certain adverse consequences.
Submission of Mr. P.P. Rao, learned senior counsel, is that the
observations and the directions are wholly unsustainable when the
appellant was not impleaded as a party to the proceeding and
further they are totally unwarranted for the adjudication of the
controversy that travelled to the Court.
8. In State of Bihar and another v. P.P. Sharma, IAS and another[1],
this Court has laid down that the person against whom mala fides or
bias is imputed should be impleaded as a party respondent to the
proceeding and be given an opportunity to meet the allegations. In
his absence no enquiry into the allegations should be made, for
such an enquiry would tantamount to violative of the principles of
natural justice as it amounts to condemning a person without
affording an opportunity of hearing.
9. In Testa Setalvad and another v. State of Gujarat and others[2] the
High Court had made certain caustic observations casting serious
aspersions on the appellants therein, though they were not parties
before the High Court. Verifying the record that the appellants
therein were not parties before the High Court, this Court
observed: -
“It is beyond comprehension as to how the learned Judges in the
High Court could afford to overlook such a basic and vitally
essential tenet of the “rule of law”, that no one should be
condemned unheard, and risk themselves to be criticized for
injudicious approach and/or render their decisions vulnerable
for challenge on account of violating judicial norms and
ethics.”
And again: -
“Time and again this Court has deprecated the practice of making
observations in judgments, unless the persons in respect of whom
comments and criticisms were being made were parties to the
proceedings, and further were granted an opportunity of having
their say in the matter, unmindful of the serious repercussions
they may entail on such persons.”
10. In State of W.B. and others v. Babu Chakraborthy
[3] the principle was reiterated by stating that the High Court was
not justified and correct in passing observations and strictures
against the appellants 2 and 3 therein without affording an
opportunity of being heard.
11. In Dr. Dilip Kumar Deka and another v. State of Assam and
another[4], after referring to the authorities in State of Uttar
Pradesh v. Mohammad Naim[5], Jage Ram v. Hans Raj Midha[6], R.K.
Lakshmanan v. A.K. Srinivasan[7] and Niranjan Patnaik v.
Sashibhusan Kar[8], this Court opined thus: -
“7. We are surprised to find that in spite of the above catena
of decisions of this Court, the learned Judge did not, before
making the remarks, give any opportunity to the appellants, who
were admittedly not parties to the revision petition, to defend
themselves. It cannot be gainsaid that the nature of remarks
the learned Judge has made, has cast a serious aspersion on the
appellants affecting their character and reputation and may,
ultimately affect their career also. Condemnation of the
appellants without giving them an opportunity of being heard was
a complete negation of the fundamental principle of natural
justice.”
12. At this juncture, it may be clearly stated that singularly on the
basis of the aforesaid principle the disparaging remarks and
directions, which are going to be referred to hereinafter, deserve
to be annulled but we also think it seemly to advert to the facet
whether the remarks were really necessary to render the decision by
the learned single Judge and the finding recorded by the Division
Bench that the observations are based on the material on record and
they do not cause any prejudice, are legally sustainable. As far
as finding of the Division Bench is concerned that they are based
on materials brought on record is absolutely unjustified in view of
the following principles laid down in Mohammad Naim (supra): -
“It has been judicially recognized that in the matter of making
disparaging remarks against persons or authorities whose conduct
comes into consideration before courts of law in cases to be
decided by them, it is relevant to consider
(a) whether the
party whose conduct is in question is before the court or has an
opportunity of explaining or defending himself;
(b) whether
there is evidence on record bearing on that conduct justifying
the remarks; and
(c) whether it is necessary for the decision of
the case, as an integral part thereof, to animadvert on that
conduct.”
13. On a perusal of the order we find that two aspects are clear,
namely, (i) that the appellant was not before the court, and (ii)
by no stretch of logic the observations and the directions were
required to decide the lis. We are disposed to think so as we find
that the learned single Judge has opined that the order of
suspension was unjustified and that is why it was revoked. He has
also ruled that there has been arbitrary exercise of power which
was amenable to judicial review and, more so, when the charges were
dropped against the employee. Commenting on the second charge-
sheet dated 15.3.2004 the learned single Judge, referring to the
decisions in State of Andhra Pradesh v. N. Radhakishan[9], State of
Punjab and others v. Chaman Lal Goyal[10], The State of Madhya
Pradesh v. Bani Singh and another[11] and P.V. Mahadevan v. M.D.
T.N. Housing Board[12], thought it appropriate to quash the same on
the ground of delay. The conclusion could have been arrived at
without making series of comments on the appellant, who, at the
relevant time, was the Chief Minister of the State.
14. At this juncture, we think it apt to point out some of the
observations made against the appellant: -
“Arrogance of power by the Chief Minister seems to be at play in
this case”
xxx xxx xxx
“The petitioner is also justified in making a grievance that
first the Chief Minister had suspended him on the basis of a
loose talk in the press conference and thereafter the officials
of the Government have attempted to justify their own mistakes
on the one pretext or the other. The petitioner would term this
case to be “a proof of worst ugly look of Indian democracy”. He
may be an aggrieved person but his anger is justified to refer
this treatment to be an ugly face of democracy. Is not it
dictatorial display of power in democratic set up? Final order
is yet to be passed regarding this charge sheet. It is orally
pointed out that the charge sheet is finalized on 16.9.2009. It
is done without holding any enquiry or associating the
petitioner in any manner. How can this be sustained in this
background?”
xxx xxx xxx
“Chief Minister was bound to inform himself of the well known
maxim “be you ever so high, the law is above you”.
xxx xxx xxx
“The respondents, thus, have made themselves fully responsible
for this plight of the petitioner on account of the illegalities
that have been pointed out and which the respondents have failed
to justify in any cogent or reasonable manner. They all are to
be held accountable for this. This would include even the then
Chief Minister, who initiated this illegal process and did not
intervene to correct the illegality ever thereafter.”
xxx xxx xxx
“The interest awardable shall be recovered from all the officers
and including the Chief Minister, who were either responsible
for placing the petitioner under suspension or in perpetuating
the illegality and had unnecessarily charged and harassed the
petitioner.”
xxx xxx xxx
“Liberty is, therefore, given to the petitioner to seek
compensation for the harassment caused to him by approaching any
appropriate Forum, including Civil Court, where he can seek this
compensation even from the then Chief Minister.”
15. On a studied scrutiny of the judgment in entirety we have no
hesitation in holding that the observations made by the learned
single Judge were really not necessary as an integral part for the
decision of the case as stated in Mohammad Naim’s case. Needless
to say, once the observations are not justified, as a natural
corollary, the directions have to be treated as sensitively
susceptible.
16. In this context, it is necessary to state about the role of a Judge
and the judicial approach. In State of M.P. v. Nandlal
Jaiswal[13], Bhagwati, CJ, speaking for the court expressed strong
disapproval of the strictures made by the learned Judge in these
terms: -
“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
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.”
17. In A.M. Mathur v. Pramod Kumar Gupta and others[14] the Court
observed that judicial restraint and discipline are necessary to
the orderly administration of justice. The duty of restraint and
the humility of function has to be the constant theme for a Judge,
for the said quality in decision making is as much necessary for
Judges to command respect as to protect the independence of the
judiciary. Further proceeding the two-Judge Bench stated thus: -
“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 the legislature. 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 be neither good for the judge nor for the
judicial process.”
18. In Amar Pal Singh v. State of Uttar Pradesh and another[15], it has
been emphasized that intemperate language should be avoided in the
judgments and while penning down the same the control over the
language should not be forgotten and a committed comprehensive
endeavour has to be made to put the concept to practice so that as
a conception it gets concretized and fructified.
19. It needs no special emphasis to state that a Judge is not to be
guided by any kind of notion. The decision making process expects
a Judge or an adjudicator to apply restraint, ostracise perceptual
subjectivity, make one’s emotions subservient to one’s reasoning
and think dispassionately. He is expected to be guided by the
established norms of judicial process and decorum. A judgment may
have rhetorics but the said rhetoric has to be dressed with reason
and must be in accord with the legal principles. Otherwise a mere
rhetoric, especially in a judgment, may likely to cause prejudice
to a person and courts are not expected to give any kind of
prejudicial remarks against a person, especially so, when he is not
a party before it. In that context, the rhetoric becomes sans
reason, and without root. It is likely to blinden the thinking
process. A Judge is required to remember that humility and respect
for temperance and chastity of thought are at the bedrock of
apposite expression. In this regard, we may profitably refer to a
passage from Frankfurter, Felix, in Clark, Tom C.,[16]:
“For the highest exercise of judicial duty is to subordinate
one’s personal pulls and one’s private views to the law of which
we are all guardians – those impersonal convictions that make a
society a civilized community, and not the victims of personal
rule,”
20. The said learned Judge had said: -
“What becomes decisive to a Justice’s functioning on the Court
in the large area within which his individuality moves is his
general attitude towards law, the habits of mind that he has
formed or is capable of unforming, his capacity for detachment,
his temperament or training for putting his passion behind his
judgment instead of in front of it.[17]”
21. Thus, a Judge should abandon his passion. He must constantly remind
himself that he has a singular master “duty to truth” and such
truth is to be arrived at within the legal parameters. No heroism,
no rehtorics.
22. Another facet gaining significance and deserves to be adverted to,
when caustic observations are made which are not necessary as an
integral part of adjudication and it affects the person’s
reputation – a cherished right under Article 21 of the
Constitution. In Umesh Kumar v. State of Andhra Pradesh and
another[18] this Court has observed: -
“Personal rights of a human being include the right of
reputation. A good reputation is an element of personal
security and is protected by the Constitution equally with the
right to the enjoyment of life, liberty and property.
Therefore, it has been held to be a necessary element in regard
to right to life of a citizen under Article 21 of the
Constitution. The International Covenant on Civil and Political
Rights, 1966 recognises the right to have opinions and the right
to freedom of expression under Article 19 is subject to the
right of reputation of others.”
23. In Kiran Bedi v. Committee of Inquiry and another[19] this Court
reproduced the following observations from the decision in D.F.
Marion v. Davis[20]:
“25. … ‘The right to the enjoyment of a private reputation,
unassailed by malicious slander is of ancient origin, and is
necessary to human society. A good reputation is an element of
personal security, and is protected by the Constitution equally
with the right to the enjoyment of life, liberty, and property.”
24. In Vishwanath Agrawal v. Sarla Vishwanath Agrawal[21], although in
a different context, while dealing with the aspect of reputation,
this Court has observed that reputation is not only the salt of
life, but also the purest treasure and the most precious perfume of
life. It is extremely delicate and a cherished value this side of
the grave. It is a revenue generator for the present as well as for
the posterity.”
25. In Mehmood Nayyar Azam v. State of Chhattisgarh and others[22] this
Court has ruled that the reverence of life is insegregably
associated with the dignity of a human being who is basically
divine, not servile. A human personality is endowed with potential
infinity and it blossoms when dignity is sustained. The sustenance
of such dignity has to be the superlative concern of every
sensitive soul. The essence of dignity can never be treated as a
momentary spark of light or, for that matter, “a brief candle”, or
“a hollow bubble”. The spark of life gets more resplendent when man
is treated with dignity sans humiliation, for every man is expected
to lead an honourable life which is a splendid gift of “creative
intelligence”. When a dent is created in the reputation, humanism
is paralysed.
26. In Board of Trustees of the Port of Bombay v. Dilipkumar
Raghavendranath Nadkarni and others[23], while dealing with the
value of reputation, a two-Judge Bench expressed thus: -
“The expression ‘life’ has a much wider meaning. Where
therefore the outcome of a departmental enquiry is likely to
adversely affect reputation or livelihood of a person, some of
the finer graces of human civilization which make life worth
living would be jeopardized and the same can be put in jeopardy
only by law which inheres fair procedures. In this context one
can recall the famous words of Chapter II of Bhagwad-Gita :
Sambhavitasya Cha Kirti Marnadati Richyate”
27. The aforesaid principle has been reiterated in State of Maharashtra
v. Public Concern for Governance Trust and others[24].
28. In view of the aforesaid analysis, we have no hesitation in
holding that disparaging remarks, as recorded by the learned single
Judge, are not necessary for arriving at the decision which he has
rendered, the same being not an integral part and further that
could not have been done when the appellant was not a party before
the court and also he was never afforded an opportunity to explain
his conduct, and the affirmation of the same by the Division Bench
on the foundation that it has not caused any prejudice and he can
fully defend himself when a subsequent litigation is instituted,
are legally unacceptable. Accordingly, we expunge the extracted
remarks hereinbefore and also any remarks which have been made that
are likely to affect the reputation of the appellant. Since, the
appeal is confined only to expunging of adverse remarks, the same
is allowed. There shall be no order as to costs.
……………………….J.
[Anil R. Dave]
……………………….J.
[Dipak Misra]
New Delhi;
January 31, 2014.
-----------------------
[1] 1992 Supp (1) SCC 222
[2] (2004) 10 SCC 88
[3] (2004) 12 SCC 201
[4] (1996) 6 SCC 234
[5] AIR 1964 SC 703
[6] (1972) 1 SCC 181
[7] (1975) 2 SCC 466
[8] (1986) 2 SCC 569
[9] (1998) 4 SCC 154
[10] (1995) 2 SCC 570
[11] JT 1990 (2) SC 54
[12] (2005) 6 SCC 636
[13] (1986) 4 SCC 566
[14] (1990) 2 SCC 533
[15] (2012) 6 SCC 491
[16] Mr. Justice Frankfurter : ‘A Heritage for all Who Love the Law,’ 51
A.B.A.J. 330, 332 (1965)
[17] -FRANKFURTER, Felix, Foreword, to Memorial issue for Robert H.
Jackson, 55 Columbia Law Review (April, 1955) P. 436
[18] (2013) 10 SCC 591
[19] (1989) 1 SCC 494
[20] 217 Ala 16 : 114 So 357 : 55 ALR 171 (1927)
[21] (2012) 7 SCC 288
[22] (2012) 8 SCC 1
[23] (1983) 1 SCC 124
[24] (2007) 3 SCC 587
