Important Point
It is not competent for a judge to have presided over the Bench in which the impugned judgment was passed as he had already expressed his opinion in the earlier writ petition which was over-ruled.

Headnote:Administrative Law - Rule against Bias-Applicability to Judicial Functionaries-Judicial “obstinacy”-Whether can be treated as a form of `bias’ (yes)-West Bengal Subordinate Labour Service-Promotion to the posts in Subordinate Labour Service - Three Feeder Posts-UDC of Labour Directorate, Labour Welfare Worker of Labour Directorate and Assistant Computors-All six promotions given to UDC in labour Directorate-Assistant Computors eligible for promotion filed writ-High Court (A.K. Sengupta, J.) directed the state to promote the present respondents-Direction set aside in appeal by DB-Respondents claimed arrears of salary pursuant to promotion on earlier direction by a W.P.-Dismissed-Appeal to D.B. decided by a Bench including A.K. Sengupta J.-Whether Mr. Justice A.K. Sengupta could sit in the DB to decide the appeal against that judgment? (No) - Meaning and forms of Bias-”Judicial obstinacy” can be treated as a form of “bias”-Appeal allowed.
       Held : An essential requirement of judicial adjudication is that the Judge is impartial and neutral and is in a position to apply his mind objectively to the facts of the case put up before him. If he is pre-disposed or suffers from prejudices or has a biased mind, he disqualifies himself from acting as a Judge. (Para 29)
       These principles have had their evolution in the field of Administrative Law but the Courts performing judicial functions only cannot be excepted from the Rule of Bias as the Presiding Officers of the Court have to hear and decide contentious issues with an unbiased mind. The maxim Nemo Debet Esse Judex In Propria Sua Causa and the principle “Justice should not only be done but should manifestly be seen to be done” can be legitimately invoked in their cases. (Para 34)
       Applying these principles in the instant case, it will be seen that although the judgment passed by Mr. Justice Ajit Kumar Sengupta in the first Writ Petition in which he had given a direction that the respondents shall be promoted with effect from 13.3.1980 was set aside, he (Mr. Justice Ajit Kumar Sengupta), in the subsequent Writ Petition between the same parties, gave a declaration that the respondents shall be treated to have been promoted with effect from 13.3.1980. Significantly, such a declaration was not prayed for and what was prayed in the subsequent Writ Petition was a direction to the State Government to pay arrears of salary of the higher post with effect from 13.3.1980. To put it differently, in the first Writ Petition, Mr. Justice Ajit Kumar Sengupta commanded “Promote the respondents with effect from 13.3.1980”: in the second Writ Petition, he directed “Treat the respondents as promoted with effect from 13.3.1980”. There is hardly any difference between the two judgments. In fact, the second Writ Petition constitutes a crude attempt to revive the directions passed by Mr. Justice Ajit Kumar Sengupta in the first judgment and, curiously, Mr. Justice Ajit Kumar Sengupta, sitting in the Division Bench, wrote, a second time, a judgment which was already over-ruled. He garnished the judgment by innocuously providing that arrears would not be payable to the respondents nor will the respondents affect the seniority of others. But the garniture cannot conceal the deceptive innocence as it is obvious, on a judicial scrutiny, that paramount purpose was to re-write the over-ruled judgment. (Para 35)
       In view of these facts, we are constrained to observe that it was not competent for Mr. Justice Ajit Kumar Sengupta to have presided over the Bench in which the impugned judgment was passed as he had already expressed his opinion in the earlier writ petition which was over-ruled. He should have disassociated himself from that Bench in keeping with the high traditions of the institution so as to give effect to the rule that “justice should not only be done, it should manifestly be seen to have been done” apart from sitting in appeal, though collaterally, over his own judgment. (Para 36)
       Held finally : The appeals are consequently allowed. The judgment and order dated 21.7.1992 passed by the Division Bench of the Calcutta High Court is set aside and the Writ Petition (Matter No. 1449 of 1987) is dismissed without any order as to costs. (Para 37)

Judgment

S. Saghir Ahmad, J.-Whether “judicial obstinacy” can be treated as a form of “bias” is the question which we intend to answer in these appeals. As the answer depends upon the peculiar facts involved in these cases, they are being examined in a little detail.

2. Leave granted in the Special Leave Petition.

3. These two appeals are directed against the judgment dated 21st July, 1992 passed by a Division Bench of the Calcutta High Court comprising of Mr. Justice Ajit Kumar Sengupta and Mr. Justice Shyamlal Kumar Sen.

4. Promotion to the posts of Inspector of Minimum Wages, Inspector of Trade Unions, other Inspectors. Investigators, Supervisors, etc. constituting the West Bengal Subordinate Labour Service, is regulated by Rules made under Article 309 of the Constitution which were first notified on 25.9.1973 and again on 1.8.1988 with certain modifications. It was provided in the Rules that fifty per cent of these posts shall be filled up by direct recruitment on the basis of the results of the West Bengal Miscellaneous Service Recruitment Examination and the remaining fifty per cent by promotion. Originally, under the 1973 notification, the eligibility for promotion was restricted to the following :

(a) Confirmed Upper Division Clerk of the Labour Directorate and of the shops and establishments Directorate, Govt. of West Bengal.

(b) Confirmed Labour Welfare Worker of the Labour Directorate, West Bengal, who were at least Matriculates or had equivalent qualification and had rendered not less than 10 (ten) years continuous service as Labour Welfare Workers under the Labour Directorate.

5. Subsequently, under the 1988 notification, the eligibility was a little expanded and the promotion was to be made from amongst :

(a) Confirmed Upper Division Clerk of the Labour Directorate, and of the Shops and Establishments Directorate.

(b) Confirmed Labour Welfare Workers of the Labour Directorate, West Bengal (now placed under the West Bengal Labour Welfare Board constituted under the West Bengal Labour Welfare Fund Act, 1974). Matriculates or have equivalent qualification, who were appointed to the same post prior to the 1st July, 1976, the date on which the West Bengal Labour Welfare Board started functioning, and have rendered not less than 10 (ten) years continuous service in the post of Labour Welfare Workers under Labour Directorate.

(d) Confirmed Upper Division Clerks of the regional offices under the Labour Directorate and under the Shops and Establishments Directorate, Government of West Bengal.

6. Confirmed Assistant Computors, thus, constituted, under both the notifications, one of the feeder posts for promotion to the posts in the Subordinate Labour Service.

7. Six of such Assistant Computors (hereinafter referred to as Respondents) filed a Writ Petition (C.O. No. 6584(W) of 1984) in the Calcutta High Court, setting out therein that although they were eligible for promotion to the posts of Inspector, Investigator and Supervisor etc. of the West Bengal Subordinate Labour Service, the respondents of that Writ Petition, namely, the State of West Bengal, Commissioner of Labour and the Joint Labour Commissioner (Statistics), had promoted only ‘the confirmed Upper Division Assistants’ to those posts in 1978 and their claim for promotion was completely ignored. It was also stated that although 48 vacancies were available in the Subordinate Labour Service in the Labour Commissioner’s Office under the Labour Directorate, the respondents intended to fill up those vacancies by promoting only the Upper Division Clerks and not the persons from other feeder posts, including the Assistant Computors. It was alleged that although only six permanent Upper Division C

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1998 Supreme(SC) 203

Important PointIt is not competent for a judge to have presided over the Bench in which the impugned judgment was passed as he had already expressed his opinion in the earlier writ petition which was over-ruled.

Cases Referred (7)

Important Point
It is not competent for a judge to have presided over the Bench in which the impugned judgment was passed as he had already expressed his opinion in the earlier writ petition which was over-ruled.