Wednesday 7 May 2014

Expunging of adverse remark against subordinate Judicial officer

A judge functioning at any level discharges his functions independently and judicially. He has his own dignity and credibility. The same has to be maintained and preserved by all specially the superior court that acts as loco-parentis by avoiding unwarranted comments on the reputation of the officer as it creates a dent in the image of the entire judicial system. Instead, if necessary the Court should adopt a reformative method on administrative side. 

Case :- MATTERS UNDER ARTICLE 227 No. - 3041 of 2013 

Petitioner :- Arvind Kumar-II 
Respondent :- High Court Of Judicature At Allahabad And Another 

Hon. Pankaj Mithal,J. 

The Court was addressed by Shri Shashi Nandan, Senior counsel assisted by Sri Udayan Nandan, learned counsel for the petitioner and Shri Manish Goyal, learned counsel for respondents in a most precise and a concise manner with all fairness without any competitiveness of winning and loosing. The assistance and the ability with which it has been provided is worth appreciation. 
Petitioner Arvind Kumar-II a member of the subordinate judiciary of the State of U.P. visualizing that his career is in ruins preferred this petition under Article 226 of the Constitution of India for expunging the remarks made against him by the District Judge in paragraph 32 of the judgment and order dated 20.3.2013 passed in Rent Appeal No. 42 of 2012 (Asfar Husain Vs. Smt. Shamin Bano). 
The petition was first presented to a Division Bench and on a query made by the Court as to whether the petitioner has preferred any representation against the adverse remark contained in the above paragraph, the petitioner instead of submitting specific reply informed that such a remark made on judicial side can be addressed by the court in exercise of its inherent power of superintendence contending thereby that the making of representation is of no avail. Accordingly, the Court vide order dated 13.12.2013 directed this petition to be treated as one under Article 227 of the Constitution of India. It is in pursuance of the said order that the registry has placed and listed this petition before me as I am dealing with petitions under Article 227 of the Constitution of India arising from suits. 
Justice Sulaiman of the Allahabad High Court in Panchanan Banerji Vs. Upendra Nath Bhattacharji AIR 1927 Alld. 193 ruled that the High Court has power to expunge remarks on the character of a person before the court. He observed "The High Court, as the supreme court of the revision must be deemed to have power to see that courts below do not unjustly and without any lawful excuse take away the character of a party or of a counsel before it." 
A three judges bench of the Supreme Court in Dr. Raghubir Saran Vs. State of Bihar AIR 1964 SC 1 in relation to a criminal case held that the High Court has inherent power to expunge remarks in judgment or order of subordinate court made against a stranger. It observed "Every High Court as the highest court exercising criminal jurisdiction in a State has inherent power to make any order for the purpose of serving the ends of justice. This power extends to expunction or ordering expunction of irrelevant remarks made against a person who is neither a party nor a witness to the proceedings." 
In the State of Uttar Pradesh Vs. Mohammad Naim, AIR 1964 SC 704 the Court in a criminal case had made adverse remarks against police force of the State and the government had applied for deletion of those remarks. The special bench of four judges of the Supreme Court held that the High Court in exercise of its inherent jurisdiction can expunge remarks made by it or by a lower court, if it is necessary to do so to prevent abuse of the process of the Court or otherwise to secure the ends of justice but the said jurisdiction is of exceptional nature to be utilised exceptionally. 
The Supreme Court in Advocate General of Bihar Vs. High Court Judicature at Patna (1986)2 SCC 577 ordered for the expunction of strictures made by the learned single judge of the High Court against the Advocate General of the State terming the incident between the bench and the bar to be unfortunate which could have been avoided with little tact and understanding without making an inquiry as to who was at fault. 
It is in this legal background that the Supreme Court in the matter of 'K' A Judicial Officer (2001) 3 SCC 54 finally laid down that a sub-ordinate judge faced with disparaging and undeserving remarks made by a court of superior jurisdiction is not without any remedy. He can invoke the inherent jurisdiction of the High Court for expunging the objectionable remarks as the High Court is a Court of record and is vested with powers of superintendence over the courts below as also with inherent jurisdiction but the aforesaid extra-ordinary inherent power vested in the High Court to expunge remarks recorded by the court of superior jurisdiction can be utilized subject to satisfying the following tests:- 
i) The passage or the remark complained of is wholly irrelevant and unjustifiable; 
ii) Its retention on the record will cause serious harm to the person/persons to whom it refers; 
iii) Its expunction will not affect the reasons in the judgment and order; and 
iv) Whether the party whose conduct is in question was before the court to defend himself. 
In Ishwari Prasad Mishra Vs. Mohd Isha AIR 1963 SC 1728 a three Judges Bench of the Supreme Court has emphasised the need to adopt utmost judicial restrain against using strong language and imputation of motive against the lower judiciary, as in such matters the judge concern has no remedy in law to vindicate his position. 
Their Lordships of the Supreme Court in Nirajan Patnaik Vs. Shashi Bhushan Kar and another (1986) 2 SCC 569 advised that harsh and disparaging remarks are not to be made against persons and authorities whose conduct come into consideration before Courts of law unless it is really necessary for the decision of the case. They also reminded that higher the forum, greater are the powers and the greater is the need for restrain and mellowed approach. 
In A.M. Mathur Vs. Pramood Kumar Gupta (1990) 2 SCC 533 the Supreme Court has sounded a note of caution that as a general principle for the proper administration of justice "derogatory remarks ought not to be made against the persons or the authorities whose conduct come into consideration unless it is absolutely necessary for the decision of the case". 
Again in K.P. Twari Vs. State of Madhya Pradesh (1994) 1 SCC 450 it was reiterated that using intemperate language and castigating strictures on the officers of the lower judiciary diminishes the image of the judiciary as a whole in the eyes of public and therefore the higher courts should exercise restrain from using disparaging remarks against the lower judiciary. 
In Brij Kishore Thakur Vs. Union of India (1997) 4 SCC65 the Apex Court disapproved the practice of passing strictures against sub-ordinate officers and observed that no greater damage can be caused to the administration of justice then by publicly expressing lack of faith in the sub-ordinate judiciary by the higher courts. 
The above legal position apart, a superior court is loco-parentis vis-a-vis the subordinate courts. Loco-parentis is a person who is in the situation of a lawful father of a child. Therefore, the relationship of a superior court with that of subordinate court is like a father to a child. It acts as its parent. The superior court as such not only acts as a controlling or supervising authority of the subordinate court but as a friend, philosopher and guide. Therefore, the superior court has to keep in mind the concept of loco-parentis while sitting in appeal over the judgments and orders of the subordinate court to keep at bay any uncalled for and unwarranted remarks. 
A judge functioning at any level discharges his functions independently and judicially. He has his own dignity and credibility. The same has to be maintained and preserved by all specially the superior court that acts as loco-parentis by avoiding unwarranted comments on the reputation of the officer as it creates a dent in the image of the entire judicial system. Instead, if necessary the Court should adopt a reformative method on administrative side. 
Thus, in the case of Amar Pal Singh Vs. State of U.P. and others (2012) 6SCC491 it has been eloquently said that a judicial officer projects the face of the judicial system and the independence of judiciary. This should be paramount in the mind of the judge of the superior court while sitting in appeal. He is therefore, required to maintain sobriety, calmness and poised restrain being loco-parentis howsoever strongly he may feel about the fallacy in the judgment and the order passed by an officer. 
In the matter of 'K' a judicial officer (Supra) it has been pointed out that any criticism and observation by a superior court in a judicial pronouncement touching on the character of a judicial officer have its own mischievous infirmities. In the first place, it condemns the officer unheard with no opportunity to shield himself. Secondly, it is a criticism in public. Thirdly, it gives the litigating party not only the sense of victory over his opponent but also over the judge. Lastly, it demoralises the officer and places him in the category of a litigant for seeking expunction of the remarks. Therefore, whenever the conduct of a judicial officer, unworthy of him, comes to the notice of the higher court on the judicial side, the better and safer course admissible is to dispose of the lis on merits thereof avoiding criticism of the officer and to draw proceedings separately on the administrative side, if necessary. 
One should also not loose sight of a well recognised legal maxim that 'the honesty and integrity of a judge can not be questioned, but his decision may be impugned for error either of law or fact'. It is in view of the above principle that it has been settled that errors in the judgment and order may be corrected by appellate tribunals in cases where the law allows for an appeal but not the honesty and the character. 
A superior court is only an appellate or revisional authority of the judgment and order of the court below to test its correctness and soundness but is not expected to sit in judgment over the conduct of the judicial or quasi judicial authority whose decisions are in issue before it and to indulge in criticising the conduct of that sub-ordinate functionary. The superior court does not act as a disciplinary authority while dealing with the judgment or order of the lower authority in appeal or revision. 
Thus, a court sitting in appeal has no authority of law to castigate or stigmatise an officer through a judgment as it would be plainly condemning him in flagrant violation of the principles of natural justice without holding an inquiry. 
The beauty of the Indian judicial system lies in its hierarchical system which provides for the correction of the judgments and orders of the subordinate courts by the superior courts but without any malice towards any one who went wrong in passing the same. The Sub-ordinate courts accepts the wisdom of superior courts unmindful of their decisions going wrong with the zeal to perform better and to act more wisely in future. But if judges of the superior courts starts rebuking the officers of the sub-ordinate judiciary for taking a particular view which may not find approval of higher echelons it would create ripples in the judiciary destroying the very fabric of its independence and fearless approach to decision making process. 
In Mona Panwar Vs. High Court of Judicature at Allahabad and others (2011) 3 SC 496 while expunging the remark made by the High Court on judicial side against a subordinate judicial officer observed that to 'err is human' and the dictum applies even to judges at all levels as it is often said that judge is yet to be born who has not committed any error. Therefore, there is a need to adopt utmost judicial restrain and not to make any disparaging remarks against the members of lower judiciary while sitting in appeal over their judgments and orders. 
In Kashi Nath Roy Vs. State of Bihar AIR 1996 SC 3240 it has been observed that in the judicial hierarchical system it is expected that in some measure the lower courts may go wrong in decision making on facts and law both but such errors are meant to be corrected by the appellate forum without frowning upon the court below in unnecessary measure. 
In view of the above legal position, two things are clear enough. In the first place superior courts should avoid making harsh and castigating remarks against the lower judiciary or its officers or any other person or authority whose conduct falls before it for consideration unless it is absolutely necessary for the decision of the suit/matter. Secondly, such adverse remarks, if made can be expunged by the High Court in exercise of its inherent supervisory jurisdiction as a court of record subject to satisfying the tests laid down in that respect. 
Additionally, it is not ordinarily permissible and proper to expose a judicial officer to punishment by way of strictures of superior courts that too in exercise of appellate power in gross breach of principles of natural justice.
In the light of the above legal discussion, I turn to the facts of the instant case. 
The petitioner holding the post of Civil Judge (Senior Division) acting as a prescribed authority on the evaluation of the evidence on record had allowed the release application of the landlady under Section 21 (1) of the U.P. Act No. 13 of 1972 vide judgment and order dated 20.3.2013 holding the need of the land-lady to be genuine and bona-fide. 
The tenant had then preferred the rent appeal whereupon the District Judge not only set aside the order of release passed by the prescribed authority but has frowned upon the petitioner observing that he has failed to take into account the subsequent events that have taken place during pendency of the release application which were on record and this was done by him wilfully and deliberately and his conduct reflects negligence and ulterior motive in discharge of judicial function. 
Paragraph 32 of the judgement containing an adversarial remark against the petitioner is reproduced herein below:- 
"mHk; i{k ds }kjk mijksDr rF; dfFkr fd, x, vkSj muds laca/k esa lk{; izLrqr dh x;h] dk iw.kZ fooj.k fo}ku fu;r izkf/kdkjh ¼fu;r izkf/kdkjh Jh vjfoUn dqekj flfoy tt lh0 fM0 ds in ij dk;Zjr gSa vkSj og U;kf;d lsok ds vuqHkoh o ofj"B vf/kdkfj;ksa esa ls ,d gSa½ ds }kjk vius vkyksP; fu.kZ.k esa mfYyf[kr fd;k x;k gS] mlds mijkUr Hkh mijksDr rF;ksa ds laca/k esa dksbZ laoh{kk muds }kjk ugha dh x;h vkSj u gh muds }kjk Hkou voeqfDr ds izkFkZuk&i= ds fopkj.k ds vUrjky esa ?kfVr rF;ksa ds laca/k esa izLrqr fd, x, dFku o lk{; dks muds }kjk tkucw{kdj LosPNkiwoZd vuns[kk fd;k x;k] tks fd muds U;kf;d dk;Z ds lEiknu esa ?kksj ykijokgh o nqHkZkouk dks ifjyf{kr djrk gSA" 
The remarks made by the District Judge in the judgment are certainly stigmatic in nature. The said remarks, if permitted to stand would definitely affect the career of the petitioner and cause serious harm to him later. 
The reading of two judgment and orders; one passed by the prescribed authority and the other by the District Judge and the perusal of the record of the court below which had been summoned by this Court, in no way indicates that the petitioner had acted with any negligence or with ulterior motive in deciding the release application. At least there is no material to impute any motive in this regard. The comment to this effect is unfounded and without any basis. It may be another thing that the judgment and order passed by him may stand vitiated for non consideration of some material on record but hardly any motive for ignoring the same can be imputed for it. Therefore, the remark contained in the passage in question is wholly unjustifiable. It would have been sufficient for the appellate authority to have stated that the order impugned is unsustainable for non consideration of the evidence on record. 
I have read the whole of the judgment and if it is read omitting the impugned paragraph 32 it would not affect the reasoning contained in the judgment so as to weaken it on merits. In short, the merits of the judgment would not be affected by the deletion of the above paragraph. The reasoning or even the conclusion arrived at by the District Judge in passing the said judgment would remain unaffected by its deletion. 
This apart, it has been well settled that such remarks ought not to be made on the judicial side unless the officer is present before the court or is given an opportunity to explain his conduct. The petitioner who is a judicial officer and a man of dignity and integrity was entitle to a minimal courtesy of furnishing his explanation before being condemned. This was none done. He came to know of it on 7.9.2013 when an annual confidential remark to the above effect was made in his service book for the year 2012-2013. 
The aforesaid objectionable remark made by the District Judge is therefore clearly in violation of the principles of natural justice and is not sustainable in law. 
In view of the above, the petitioner qualifies all the tests laid-down in 'K' a judicial officer (Supra) for expunging the remarks made against him by the District Judge on the judicial forum. 
Accordingly, for all that has been said, I direct for expunction of the entire paragraph 32 of the judgment and order dated 20.3.2013 passed by the District Judge in rent appeal no. 42 of 2012. 
The petition is allowed but with no costs. The lower court record is directed to be returned forthwith. 

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