SHRI BHAJANLAL, CHIEF MINISTER, HARYANA A

v.

MIS JINDAL STRIPS LTD. AND ORS.

AUGUST 8, 1994

[M.N. VENKATACHALAIAH 0. AND S. MOHAN, JJ.]

B

Code of Civil Procedure, 1908 Section 25-Transfer Petition-Bias-Ap­

prehension of-Case admitted by a Judge who later became acting Chief Jus­

tice-Case listed before another Bench-Direction for de/isling from other

Bench and listing before the said Judge-Application for transfer->4.fter ad-C

vance stage of arguments-field: Mere Transfer of the case from one Bench

to another is not justified ground for allegation of bias.

Administrative Law-Natural Justice-Bias-The decision maker

should

have no interest

direct or indirect-Non-pecuniary bias-Nature and

extent of interest to be seen. D

Practice and Procedure-rlffidavit relating the events and conversation

among the judges-Litigant cannot seek information about what transpired

between the Judges of the Cowt regarding his case.

Judicial Propriety-Case directed to be delisted from one Bench for

listing before another Bench-Another judge of the Cowt wrote letter enquir­

ing about de/isling-Held : enquiries and letters not consistent with the

restraint expected of the high offices.

E

In a writ petition filed by the Respondent No.l, allegations or F

malafide were levelled against the Petitioner. Petition was admitted by

Judge 's' who later became acting Chief Justice and the matter was listed

before another Tax Bench, Judge 'S' directed the matter to be delisted from

the other Bench and Hsted before him. Judge 'M' gave letters to Registrar

seeking his explanation regarding the delistlng. Judge ~S' delisted the

matter from his Bench and the petition was listed before Tax Bench. After G

appointment of Chief Justice, Jndge 'S' became senior most Judge presid-

ing over the tax bench and the petition was again listed before him. At the

advance stage

or

hearing, appellant filed application for transfer or the

petition on the gronnd or bias. During the hearing Judge 'M' had written

to the Chief Justice requesting tO know the reasons for transfer or the case H

445

446 SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A to the bench comprising of Judge 'S'.

Appellant filed affidavit stating the events

and communication

be·

tween the Judges of the High Court regardi.ng the listing and delisting of

the petition without stating the source of the information. In the rejoinder

affidavit he stated

that before filing of the petition the information was

B confirmed by the then

Chief Justice, but his name was not mentioned in

the petition since

he had refused.

Contention of the appellant

was that transfer of

single case is

sufficient to establish the interestedness of Judge 'S'. The contention of

C Respondent No. 1 was that it was the normal practice, if date was fixed for

final bearing by a particular Bench, it should come before the same Bench.

Therefore, delisting from Tax Bench

and listing it before his Bench was

not the sign of bias.

D

Dismissing the appeal, this court

HELD: 1.

On the ground of allegation of malafides It cannot be said,

a particular Bench cannot

bear the case. To make the transfer of the

writ

petition from one Bench to another, a ground for allegation of bias Is

unjustified. Under the facts

and circumstances of the case, there Is nothing

to indicate

that the then Acting

Chief Justice evinced and interest in

E hearing this matter, or that he was biased. (454-F, GI

2. In the case of non-pecuniary bias, regard is to be bad to the extent

and nature of interest. Then alone the Judge wDl be disqualified. Bias is

the second limb of natural justice.

Prima facie no one should be a judge in

F what is to be regarded as

'Sua Causa' Whether or not he is named as a

party. The decision maker should have no interest by

way of gain or

detriment in the outcome of a proceeding. Interest may take many forms.

It may be direct, it may be indirect, It may arise from personal relationship

or from a relationship with the subject matter, from a

close relationship

G

H

or from a tenuous one. (455-B, 454-H, 455·A]

R v. Sussex Justices, Ex. P Mc Carthy, (1924) 1 KB 256 and R v.

Bransley Lisensing Justices, Ex 0 Bransley and District Licensed Victuallers'

Association, (1960) 2 QB 167, Metropolitan Properties Co. (FGC) Ltd.

Lannon, (1969) 1 QB 577, referred to.

3.

It

Is deprecating that the appellants sought Information as to what

!

BHAJANLAL v. JINDALSTRIPSLTD.[MOHAN,J.) 447

transpired within 'the judicial fortress' among the judicial brethren. A

Judges should not be dragged in and their names mentioned in the

matters.

(457-B)

4. The conduct of Judge 'M' might incur the criticism of transgress-

ing the proprieties of the high

office. The enquiries and letters by the

Judge are not consistent with the restraint expected of the

High offices. B Courts are a storm centre facing the panoply of human problems, crowded

dockets an unrelating work schedules. The Judges must remain unrumed

and calm in the midst of contending forces. [ 457

·E·F ·G, 458-A)

Public Utilities Commission of the District of Columbia v. Franklin S C

Palla~ 3.43 US 451, referred to.

Et palte American Steel Barret Co. 57 Law Ed. U.S. 1379 Bell v.

Chandler, 569, Federal Report 2nd Series 556, United States v. Scuito, 531

Fedral Report, 842; Metropolitan Properties Company v. Lannon, (1969) 1

QBD

577, Ranjit Thakur v.

U. O.L, (1988) 1SCR512; Lalita v. State of Bihar, D

AIR (1957) SC 198; M.Y. Shareefv. The Hon'bleludges of the High Court

of Nagpur, (1955) 1 SCR 756; Gujarat Electricity Board v. Atmaram Sun­

gamal Poshni, (1989) 2 SCR 357; The Barium Chemicals Ltd v. The

Company Law Board, (1969) Suppl. SCR 311; Sukhwinder Pal Bipin Kumar

v. State of Punjab, (1989) 2 SCR 31 and Smt. Savithramma v. CECI I E

Naronha, (1988) Suppl; 2 SCR 561, cited.

CML APPELLATE JURISDICTION: Civil Appeal No. 5525 of

1994.

From the Judgment and Order dated 6.10.1993 of the High Court F

of Punjab and Haryana at Chandigarh in C.M. 9909/93 in C.W.P. 1898/92.

With

T.P. (C) 880/93.

G

Kapil Sibal, R. Karanjawala and Mrs. Manik Karanjawa for the·

Appellants.

Shanti Bhushan and Jayant Bhushan for the Respondents.

The Judgment of the Court was delivered by

H

448 SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.

A MOHAN, J. Leave granted.

The appellant is the Chief Minister of Haryana. The first respondent

filed a Writ Petition C.W.P. No.1898 of 1992 challenging the assessment

order passed by the Deputy Excise and Taxation Commissioner-cum-As­

sessing Authority, Hissar, Haryana confirming a demand for sales tax of

B Rs. 2,04,13,895. Similar writ petitions have been filed against separate

assessment orders by the first respondent for a total amount of payment

aggregating to a liability of Rs.20 crores. In these writ petitions allegations

of personal mala fide have been levelled against the appellant.

C The writ petition came up for preliminary hearing on 7.2.92 before a

Division Bench consisting of S.S. Sodhi and K.C. Garg JJ. The writ petition

was admitted and ex parte ad-interim stay was granted. After notice, when

the matter came up for hearing before a Bench consisting of S.S. Sodhi

and R.S. Mongia, JJ, it was directed to be listed for final hearing on 3.8.92.

The then Chief Justice Mr. Rama Jois Proceeded on leave on 1.8.92.

D Thereupon, S.S. Sodhi, J, became the Acting Chief Justice.

On 3.8.92, when the writ petition was listed before the Tax Bench

comprising of A.P. Choudhary and N.K. Sodhi, JJ, S.S. Sodhi, J. directed

the writ petition to be delisted from the Tax Bench before which it was

E listed and transferred the case presided over by S.S. Sodhi, J, hi.m$Clf. It

appears this was the only case which was directed to be delisted from the

Tax Bench and transferred to the Division Bench presided over by the then

Acting Chief Justice.

On 21.8.92, Chief Justice Mr. Rama Jois returned from leave and

F resumed charge. On 24.8.92 this Court in Special Leave Petition (Civil) No.

7700 of 1992 arising out of a connected Writ Petition (Civil) No. 3864 of

1992 directed the case be remanded to the High Court ordering ex­

peditious disposal along with C.W.P. No. 1898 of 1992. On 1.9.92, Chief

Justice Rama Jois resigned. Thereupon, again, S.S. Sodhi, J, became Acting

G Chief Justice. He continued in that capacity till 13.11.92. When the writ

petition was pending hearing, G.R. Majithia, J, sought an explanation from

the Registrar (Judicial) as to why the case was transferred from the Tax

Bench to the Bench presided over by the Acting Chief Justice. On 21.10.92,

S.S. Sodhi, J. delisted the wrii petition from his Bench and re-transferred

it to the Tax Bench comprising of A.L. Bahri and Ashok Bhan, JJ. The

H case did not reach for hearing before this Bench. On 22.10.92, G.R.

•

BHAJANLAL v. JINDAL STRIPS LTD. [MOHAN, J.] 449

Majithia, J. once again wrote to the Registrar (Judicial) seeking compliance A

with his earlier order dated 20.10.92. This letter was forwarded by the

Registrar (Judicial) to the Acting Chief Justice soliciting orders

in respect

thereof.

It was directed that the note be placed in the file. On 14.11.92, justice S.D. Agarwala was appointed as chief Justice,

As result, S.S. Sodhi, J. became the seniormost puisne Judge.

B

On the re-opening of the High Court after summer vacation, the writ

petition along

with other connected petitions were placed for hearing

before the Tax Bench comprising of

S.S. Sodhi and Ashok Bhan, JJ. A

request

was made for an early hearing of the writ petition on behalf of the C

first respondent. Accordingly a direction was issued that the writ petitions

be placed for final hearing on

13.9.93. The hearing went on on 13.9.93. A

preliminary objection

was raised on behalf of the State about the main­

tainability of the writ petition since the alternate statutory remedies avail-

able to the first respondent had not been exhausted. The Division Bench

did not consider that objection but directed the arguments be addressed

D

on merits. The petitions were adjourned for further order to

4.10.93.

The records bear out G.R. Majithia, J. addressed a letter to the

learned Chief Justice on

13.9.93 referring to his earlier

c~mmunication on

the subject and requested to know the circumstances under which the writ E

petition had been transferred to a Division Bench presided over

by

S.S.

Sodhi, J. Be that so. On 4.10.93, the hearing recommended on the writ

petition.

The appellant on

his return after long tour of Rajasthan and Delhi,

on

4.10.93, came to know about these happenings. They were the cause of F

some consternation and apprehension in

his mind since allegations of

malaftdes had been levelled against him by the first respondent who is said

to

be a political opponent. Therefore, on

4.10.93 an application C.M. No.

9909 of 1993 was moved requesting the Division Bench to transfer the

matter from their Bench. Notice

was issued and the hearing was fixed on G 6.10.93.

After hearing the arguments, the application for transfer was dis­

missed. However, time was granted till 12.10.93 to approach this Court and

it was indicated that thereafter the matter would be taken up on day to day

basis.

H

450 SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.

A Appellant assails in this appeal the order refusing transfer. During

this civil appeal, an additional affidavit was filed on behalf of the appellant

giving details of the course which the writ petition took. He would have it,

on 3.8.93, when S.S. Sodhi, J. took over as Acting Chief Justice the writ

petition was listed at Serial No. 342 before A.P. Chaudhari and N.K. Sodhi,

B JJ. S.S. Sodhi, J. orally directed the Registrar (Judicial), Shri B.R. Gulati

that

the writ petition along with connected writ petitions be listed before

a

Bench presided over by the then Acting Chief Justice. The note in

support

of the same is produced as Annexure 'F'.

The affidavit further proceeds to state that the deponent reliably

C learnt that the then Acting Chief Justice, in fact, went to the Chambers of

N

.K.

Sodhi, J. and told him that by mistake it had been listed before a

Bench presided

over by

A.P. Chaudhari, J. N .K. Sodhi, J. was somewhat

agitated and told

the Acting Chief Justice that the transfer of the case from

that

Bench was not in accordance with the normal practice of the High

Court. There

was no reason why the matter was removed from the roaster.

D

A.P. Chaudhari, J. also is said to have sent a formal note to the Registrar

as to why this particular matter had been removed from their Bench and

the note

was apparently returned with an endorsement by the Registrar

(Judicial) indicating that this

was done on to the oral directions of the

Acting Chief Justice.

the deponent believed that S.S. Sodhi, J. thereafter

E met N .K. Sodhi, J. to express his regret for what had happened. The list

of the Tax Bench comprising of A.P. Chaudhari and N.K. Sodhi, JJ. was

circulated on the evening of August, 1, 1992 on or the morning of August

2, 1992. The constitution of the Tax Bench of A.P. Chaudhari and N.K.

Sodhi, JJ. was circulated on the evening of 1st August or morning of 2nd

August,

1992.

On 31.7.92 a request was made before S.S. Sodhi, J. that

F CWP 1898/92, which he had while presiding over the Bench fixed for 3.8.92

may not be taken up on that day.

G

H

His further averment is as under :

"It is further reliably learnt that Hon'ble Chief Justice Rama

Jois returned to Chandigarh in August,

1992 and both Justice N.K. Sodhi and Justice A.P. Chaudhari met the Hon'ble Chief Justice

and it seems that the Hon'ble Chief Justice

conveyed to them that

he had already told the Acting Chief Justice that

this should not

have been done and that the Acting Chief Justice should not hear

the matter

when it came up for hearing.

Under these circumstan-

BHAJANLAL v. JINDAL STRIPS LTD. [MOHAN, J.] 451

ces, it was felt that the Hon'ble Judges from whose Bench it was A

de listed should not carry the matter any further.

If these facts are correct, obviously Hon'ble Justice S.S. Sodhi

should not have heard this matter when it came up for hearing

before

him in October, 1992.

B

...... The deponent feels that it is imperative in matters of this

nature that the Court believes that the Executive does not

file

applications of this nature irresponsibly and with a motivation to

have the mater heard by one Bench or another. The deponent has

disclosed these

facts as they have come to his knowledge, so that

the court

may not have an impression that the application was C

motivatedly filed and that by the filing of this application, the

dignity of the Court

is being compromised. The deponent herein

respects the highest traditions and dignity of the Court, and would

in no circumstances ever compromise it. The facts set out herein

all stated instead of show that there

was genuine apprehension in D

the mind of the deponent and that these facts were to the

knowledge of the Leaned Judge in the matter.

Since the petition

involved allegations of personal

malaftdes against the deponent,

and since the deponent

was joined as a party-respondent, the

circumstaaces as set out hereinabove warranted that the Learned

Judge need not have heard the matter himself, and that the Hon'ble

E

Chief Justice would have, in the circumstances, directed the matter

to be listed before any appropriate Bench.

It is not that the

deponent

was, and is wishing the matter to be heard by any

particular Bench. It

is with this view that the present affidavit is

being

filed."

A counter affidavit has been filed on behalf of the first respondent

that the facts stated in the additional affidavit are not admitted by the first

respondent since he has no means to verify the correctness of the same.

Further, the appellant has not disclosed in

his affidavit the source of his

information. On 18.11.93 serious arguments were addr·essed whether the affidavit

must disclose the source of information. The1·efore, the first respondent

tho~gh fit to file an affidavit that" his counsel Shri Shanti Bhushan con­

tacted former Chief Justice

Mr .. Rama Jois in the evening of 18.11.93 itself.

F

G

He wrote about the contents of paragraph 8 and also informed him that H

452 SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

A the counsel for the appellant had stated before this Court that the infor­

mation contained in that paragraph had been conveyed to the appellant by

Chief Justice Mr. Rama Jois. The counsel for the respondent asked Chief

Justice

Mr. Rama J ois whether it was so to which the reply was that he

considered it improper to talk about any conversation which might have

B taken place between the Chief Justice and other Judges of the High Court

in the

Chambers. In view of this Principle he could not give any such

information to any person much less to a party or its counsel. Thus, it is

clear that Chief Justice Mr. Rama Jois Could not have conveyed any such

information to the appellant."

C In response to this, the appellant stated that prior to the date of his

filing the petition for transfer on 4.10.93 he contacted the then Chief Justice

Mr. Rama Jois on telephone and asked him why S.S. Sodhi, J, had taken

up the matter. The appellant would state that he got the information that

Chief Justice Mr. Rama Jois had advised S.S. Sodhi, J. not to do so. This

was confirmed by Chief Justice Mr. Rama Jois. The appellant was also

D informed that Chief Justice Mr. Rama Jois had informed S.S. Sodhi, J. that

it was wrong on the part of S.S. Sodhi, J. to have transferred the matter in

the ftrst place. The appellant states that the retired Chief Justice Mr. Rama

Jois was asked whether his name could be mentioned in the application lo

be

moved by him. The appellant was replied that this would

embarra&s him

E and his name should not be brought into the proceedings. Therefore, he

did not mention the judge's name in the application and in the additional

affidavit filed by him.

Mr. Kapil Sibal, learned counsel for the appellant submits that

F transfer of one case alone to the file of the then Acting Chief Justice would

be enough to establish his interestedness. The right to fair trial is guaran­

teed under the Constitution. It entitles a litigant to adjudication of a cause

by a judge who is perceptibly and demonstrably unbiased and without

prejudice.

In order to dispel any suspicion of a litigant a judge should

recuse

himself even though the judge is not conscious of any bias or

G prejudice.

Such a prejudice, a state of mind, cannot be proved by direct

and

positive evidence. Therefore, it cannot be judged on the basis of an

objective standard but from the point of view of the litigant. In support of

his submission learned counsel cites the following cases :

H

Ex Parte American Steel Barrel

Co. 57 Law Ed. U.S. 1379 at 1383-84.

BHAJANLAL v. JINDAL STRIPS LTD. [MOHAN, J.) 453

Bell v. Chandler, 569 Federal Report 2d Series 556 at 558-559 where A

the test adopted is not bias or prejudice alone but the be~! of mind that

may prevent impartiality.

United States v. Scuito, 531 Federal Report 842 at 845 wherein the

test

is to accept the affidavit which is taken as true for the purpose of

motion.

Metropolitan Properties Co. v.

La111w11, [1969] 1 Queen's Bench

Division

577 at 599.

B

This Court had also adopted the same principle as seen from

Ra11jit C

Thakur v. Union of India, [1988] 1 SCR 512 and Lalita v. State of Bihar,

AIR ( 1957) SC 198 at paragraphs 20 and 21.

Thus, it is submitted that the learned Judges had gone wrong in

refusing to order transfer when the litigant entertained suspicion that he

may not get justice at the hands of this Bench, that too, in a sensitive matter D

where allegations of ma/a fides have been made against the appellant.

Mr.

Shanti Bhushan, learned counsel for the first respondent submits

that a clear finding has been recorded

by the Bench there could be no

possible occasion for the appellant to entertain any apprehension that he

would not get justice from the Bench. The only ground for transfer urged E

was that the petition was taken up for hearing by

S.S. Sodhi, J. after he had

directed the matter to be delisted from the Tax Bench and be listed before

his Bench. This ground is untenable. It was the normal practice if a date

was fJXed for final hearing by a particular Bench, it should come before the

same Bench. This practice has not been denied by the appellant. A request

was made by the Advocate General of Haryana, the counsel for the

appellant before

S.S. Sodhi, J. that since he was busy otherwise the case

might not be taken up on

3.8.92. This request was acceded to.

On 31.7.92,

when this request was made S.S. Sodhi, J. was not Acting Chief Justice.

F

The learned Advocate General knew that the matter should be listed G

before S.S. Sodhi J.'s Bench. However, when it was mistakenly shown on

2.8.92 before a different Bench and since 3.8.92 S.S. Sodhi, J. became

Acting Chief Justice he directed the matter

be posted before him for

hearing. The case remained on the Bench of

S.S. Sodhi, J. from 3.8.92 to

21.10.92 and no objection whatsoever was raised. The application of the

appellant

was a belated attempt after three days of hearing and after

20 H

454 SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A days of the commencing of final bearing on 13.9 .93 by which time the

arguments had reached an advance stage.

In M.

}'. Shareef v. The Hon'ble

Judges of the High Cowt of Nagpur, (1955] 1 SCR 757 this Court had

occasion to condemn the attempts for a change of Bench. The ratio of that

ruling

will squarely apply to the facts of this case. To the same effect is the

B case in Gujarat Electricity Board v. Atmaram Sungomal

Poshani, (1989] 2

SCR 357 at 362. No doubt, reasonable apprehension of bias which a

reasonable person can entertain

may be a good ground for transfer. That

does not mean a litigant has a right to ask for a change of Bench. A mere

statement of a party to a proceeding about

his entertaining in apprehension

may be inadequate as the facts of this case make it quite clear. Even in the

C later affidavits filed, the

source of information has not been disclosed. The

requirement of law

is, there must be such a disclosure as seen from

The

Barium Chemicals Ltd. v. The Company Law Board, (1966] Supp. 311 at

352, Sukhvinder Pal 3ipin Kumar v. State of Punjab, (1982] 2 SCR 31 at 40

and Smt. Savithramma v. CECIL Naronha, (1988] Supp. 2 SCR 561.

D

The allegations relating to bias have paled into insignificance since

the learned Judge (S.S. Sodhi,J) against whom bias is alleged is no longer

in the High Court Punjab and Haryana. Normally, therefore, we would

have rest content with the dismissal of this appeal as having become really

infructuous. But certain unhappy events

have taken place in this case which

E we view with concern. Therefore, we feel obliged to express our mind.

The appellant

is the Chief Minister of a

State. Against him allega­

tions of malafides are made by the first respondent. He might have

strongly resented such allegations quite understandably desired to defend

F himself. On that score, it cannot be said, a particular Bench cannot hear

the case. Whatever might have been the reason for the transfer of the writ

petition from one Bench to another to make that a ground for allegation

of bias appears unjustified. May be, either because of a particular practice

prevailing

in a court that the Bench which directed the posting of a case

should fmally hear the matter or because of the change of roasters, the

G case would have come before a particular Bench. There is nothing to

indicate that the then Acting Chief Justice

S.S. Sodhi evinced an interest

in hearing this matter or that, he was biased.

Bias

is the second limb of natural justice.

Prima facie no one' should

H be a judge in what is to be regarded as 'Sua Causa', whether or not he is

BHAJANLAL v. JINDAL STRIPS LTD. [MOHAN, J.] 455

named as a party. The decision-maker should have no interest by way of A

gain or detriment in the outcome of a proceeding. Interest may take many

forms. It may be direct, it may be indirect, it may arise from a personal

relationship or from a relationship with the subject-matter, from a close

relationship or from a tenuous one.

In the case of non-pecuniary bias,

as alleged in the instant case,

regard

is to be had to be extent and nature of interest. Then alone, the

judge

will be disqualified. In the leading case R v.

Sussex Justices, ex p.

McCarthy, (1924] 1 KB 256, Lort Hewart observed thus :

B

"It is not merely of some importance but , is of fundamental C

importance that justice should not only be done, but should

manifestly and undoubtedly be seen to done

... Nothing is to be

done which creates even a suspicion that there has been an

im­

proper interference with the course of justice."

In R v. Barnsley Licensing Justices, exp. Barnsley and Distn"ct Licensed D

Victuallers' Association, (1960] 2 QB 167 Justice Devlin LJ said at pages

186-87:

, "We have not to inquire what impression might be left on the

minds of the present applicants or on the minds of the public

generally. We have to satisfy ourselves that there

was a real E

likelihood of bias not merely satisfy ourselves that that was the sort

of merely satisfy ourselves that that

was the sort of impression that

might reasonably get abroad. The term 'real likelihood of bias'

is

not used, in my opinion, it import the principle in R v.

Sussex

Justices to which Salmon J referred. It is used to show that it is not F

necessary that actual bias should be proved.

It is unnecessary, and,

indeed might be most undesirable, to investigate the state of mind

of each individual justice. 'Real likelihood' depends on the

impres­

sion which the court gets from the circumstances in which the

justices were sitting. Do. they

give rise to a real likelihood that the G

justices might be biased? The court might come to the conclusion

that there

was such a likelihood, without impugning the affidavit

of a justice that he

was not in fact biased. Bias is or may be an

unconscious thing and a man

may honestly say that he was not

actually biased and did not allow

his interest to affect his mind,

although, nevertheless, he

may have allowed it unconsciously to do H

A

B

c

D

E

F

G

456

SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.

so. The matter must be determined upon the probabilities to be

inferred

from the circumstances in which the justices sit."

The present day law in England is based on reasonable suspicion.

Metropolitan Properties Co. (FGC)

Ltd. Lannon (1969) 1 QB 577, an

authority relied

on by Mr. Kapil Sibal, lays down :

"In Hannam v. Bradford City Council, [1970] 2 All ER 690 [1970]

1 WLR 937 Cross LI expressed the view, at p. 949, that there is

really little, if any, difference between the real likelihood of bias

and reasonable suspicion of bias test :

"If a reasonable person who has no knowledge of the matter

beyond knowledge of the relationship which subsists between some

members of the tribunal and one of the parties would think there

might well be bias, then there is in his opinion a real likelihood of

bias. Of course, someone else with inside knowledge of the char­

acters of the members in question might say: 'Although things don't

look very well, in fact there is no real likelihood of bias.' That,

however, would be beside the point, because the question is not

whether the tribunal

will in fact be biased, but whether a

reasonable

man with no inside knowledge might well think that it

might be biased.'

This view was accepted in R. v. Liverpool Justices,

exp. Topping,

[1983] 1 All ER 490, (1983) 1 WRLR 119. The Divisional Court

considered that

the correct test to apply is whether there is the

appearance of bias, rather than whether there is actual bias; and

that

as to the way in which the test is to be applied the question

is: Would a reasonable and fair-minded person sitting in Court

and

knowing all the relevant facts have a reasonable suspicion that

a

fair trial for the applicant was not possible? 'Reasonable

suspiciDn' seems to have prevailed over 'reasonable likelihood' as

the test to be applied in determining bias.'

It is in the light of this, the mater will have to be examined.

So done,

we hardly find any ground to hold that there could be a reasonable

suspicion

of bias in this case. That is evident from the facts. The case was

in the list of the Bench headed by

S.S. Sodhi, J. from 3.8.92 to 21.10.92.

H No objection was raised. Arguments were advanced for three days on the

BHAJANLAL v. JINDAL STRIPS LTD. [MOHAN,J.] 457

main \Tit petition. The application for transfer was taken out on the A

ground of alleged bias. By then the matter was coming to a close. It cannot

be said that there could be any reasonable apprehension of bias which a

reasonable person could entertain,

as rightly urged by Mr. Shanti Bhushan.

It appears the attempt was to avoid the Bench headed by S.S. Sodhi, J.

We are unhappy that the appellant should have felt compelled to B

seek information as to what transpired within 'the judicial fortress' among

the judicial brethren. Judges should not be dragged in and their names

mentioned in such matters. Rightly the former Chief Justice

Mr. Rama J ois

refused to allow

his name to be quoted considering it improper to talk

about

any conversation which might have taken place between the Chief C

Justice and the other Judges of the High Court in their Chambers.

Then,

we came to G.R. Majithia, J. a senior judge.

On 20.10,92 he

sought an explanation from the Registrar (Judicial)

as to why the case was transforred from the Tax Bench to the Bench presided over by the then

Acting Chief Justice, S.S. Sodhi, J. Secondly, on 22.10.92, he \TOie a letter D

to the Registrar (Judicial) calling for a report.

This letter, at the direction of the then Acting Chief Justice

was

placed in the file. Again, on 13.9.93 the another letter was

\Titten by

Majithia, J. to the Chief justice.

E

We have perused these l.etters. We are of the view that learned judge

should not have sent these communications. This conduct might incur the

criticism of transgressing the proprieties of the high office.

We cannot but

express our unhappiness about these letters; whatever might have been the

compulsions that impelled the learned Judge to

do so. We presume that F

the learned Judge did so on

his own impression of the proprieties of

procedure adopted

by the Registry. But his enquiries and letters are not

consistent with the restraint expected of the high office.

Courts

are. indeed a storm centre facing the panoply of human

problems, crowded dockets and unrelenting

work schedules. Justice

Oliver G

Wendell Holmes said :

''We are quiet here but it

is the quiet of a storm

centre."

Jn Justice Benjamin Cardazo's memorable words, "the great tides and

currents which engulf the rest of men, do not turn aside

in their course, H

458 SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.

A and pass judges by." We should only add that the judges must remain

unruffled and

calm in the midst of contending forces. To recall the words

of Mr. Justice Frankfurter in Public

Utilities Commission of the District of

Columbia v. Franklin S. Pollak, 343 US 451 at 465-466 {96 Law. Ed. 1068

at 1079):

B "The Judicial process demands that a judge move within the

framework of relevant legal rules and the covenanted modes of

thought for ascertaining them. He must think dispassionately and

submerge private feeling on every aspect of a case. There is a good

deal

of shallow talk that the judicial robe does not change the man

C within it. It does. The fact is that on the whole judges do lay aside

private views in discharging their judicial functions. This is

achieved through training, professional habits, self-discipline and

that fortunate

alchemy by which men are loyal to the obligation

with which they are entrusted." {Emphasis supplied )

D With this we leave.

Civil appeal No. 5525/94 arising out S.L.P. (C) No. 16577of1993 and

Transfer Petition {Civil) No. 880 of 1993 are dismissed. No costs.

D.K.T. Appeal dismissed.