Head
Note;
1.
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.
2. 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.
3. 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.
4. 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.
5.
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.
Reportable
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 1992
Supp (1) SCC 222 , 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 (2004) 10 SCC 88 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 (2004)
12 SCC 201 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 (1996)
6 SCC 234, after referring to the authorities in State of Uttar Pradesh v.
Mohammad Naim AIR
1964 SC 703, Jage Ram v.
Hans Raj Midha 1972)
1 SCC 181, R.K. Lakshmanan v.
A.K. Srinivasan (1975)
2 SCC 466 and
Niranjan Patnaik v.
Sashibhusan Kar (1986)
2 SCC 569, 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 (1998)
4 SCC 154, State of Punjab and others v.
Chaman Lal Goyal (1995)
2 SCC 570, The State of Madhya Pradesh v.
Bani Singh and Another JT
1990 (2) SC 54 and
P.V. Mahadevan v.
M.D. T.N. Housing Board (2005)
6 SCC 636, 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 (1986) 4 SCC 566,
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 (1990)
2 SCC 533 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 (2012)
6 SCC 491, 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.
Mr. Justice Frankfurter : ‘A Heritage for all Who Love the Law,’,:
“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.”
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 (2013)
10 SCC 591 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 (1989)
1 SCC 494 this
Court reproduced the following observations from the decision in D.F. Marion v. Davis 217
Ala 16 : 114 So 357 : 55 ALR 171 (1927):
“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 (2012) 7 SCC 288,
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 (2012)
8 SCC 1 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 (1983)
1 SCC 124, 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 :
27. The
aforesaid principle has been reiterated in State
of Maharashtra v. Public Concern for Governance Trust and others (2007)
3 SCC 587.
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.
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