Union Of India vs Gopal Chandra Misra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1978 Supreme(SC) 59

SUPREME COURT OF INDIA
R.S. SARKARIA, A.C. GUPTA, N.L. UNTWALIA, S. MURTAZA FAZAL ALI AND JASWANT SINGH, JJ.*
Union of India etc., Appellants
Versus
Gopal Chandra Misra and others, etc., Respondents.
Civil Appeals Nos. 2644 and 2655 of 1977.
Decided on 15-2-1978.
Advocates appeared
Mr. S. V. Gupte Att. Gen., Mr. Soli J. Sorabjee Addl. Sol. Gen. (in C.A. No. 2644 of 1977): Mr. R. P. Bhat, Sr. Advocate (M/s. R. N. Sachthey and Girish Chandra, Advocates with them), for Appellant in C.A. No. 2644 and Respondent No. 2 in C.A. No. 2655 of 1977; Mr. F. S. Nariman, Sr. Advocate (M/s. S. P. Gupta, Harish Chandra, H. K. Puri, M. C. Dhingra and Vivek Sethi, Advocates with him), for Appellant in C. A. No. 2655 and Respondent No. 2 in C. A. No. 2644 of 1977; Mr. Jagdish Swarup, Senior Advocate (in C. A. No. 2655 of 1977); 696 Mr. Yogeshwar Prasad, Senior Advocate (in C. A. No. 2644 of 1977); (M/s. G. N. Verma, A. N. Srivastava, Mool Behari Saxena, Pramod Swarup, Miss Rani Arora and Miss Meera Bali, Advocates with them), for Respondent No. 1 in both Appeals.
* Civil Misc. Writ No. 1172 of 1977, D - 28-10-1977 (All) (FB).
* Note :- The Judgments are printed in the order in which they are given in the certified copy. The first judgment is not, therefore, necessarily the leading judgment. - Ed.

Advocates:
A.N.SRIVASTAVA, F.S.NARIMAN, G.N.VARMA, GIRISH CHANDRA, H.K.PURI, HARISH CHANDER, JAGDISH SVARUP, M.C.DHINGRA, MIRA BAHL, MUL BEHARI SAXENA, PRAMOD SVARUP, R.N.SACH, R.P.BHATT, RANI ARORA, S.P.GUPTA, S.V.Gupta, SOLI J.SORABJI, VIVEK SETHI, YOGESHAR PRASAD

Headnote:EFFECT OF CONSTITUTION AMENDMENT, 1974—ON BOTH ARTICLES 101(3)(b) AND 190(3)(b)—RESIGNATION TO BECOME EFFECTIVE IS DEPENDENT ON ACCEPTANCE BY SPEAKER OR CHAIRMAN AS THE CASE - APPEAL ON A CERTIFICATE GRANTED BY HIGH COURT CONSIDERATIONS - “LOCUS STANDI” OF PERSON TO MAKE APPEAL UNDER CERTIFICATE ISSUED UNDER ARTS.132, 133—CONDITIONS
-in order to give a person locus standi to appeal on a certificate granted, it is necessary that he was a party in the case before the High Court. Union of India v. Gopal Chandra Misra, AIR 1978 SC 694. For the purpose of granting the certificate, all that the High Court is required to consider is whether the case raises a substantial question of law of the kind mentioned in the constitutional provision. Even if a single such question of law is found to arise in the case, a certificate must be granted. Once the certificate is granted the appeal is lodged in the Supreme Court, it is open to the appellant to raise all grounds which properly arise in the appeal the circumstances that there are grounds which were not found sufficient for the grant of certificate does not preclude the Supreme Court from entertaining them as grounds arising in the appeal - The Management of Monghyr Factory of ITC Ltd. v. The Presiding Officer, Labour Court, AIR 1978 SC 1428; Raghavamma v. Chenchamma, AIR 1964 SC 136. As held in the State Bank of India v. Shri N. Sundara Money, AIR 1976 SC 1111, a substantial question of law of general importance is a sine qua non to certify fitness for hearing by the Apex Court. Nay, more : the question however important and substantial, must be of such pervasive import and deep significance that in the High Court’s judgment it imperatively needs to be settled at the national level by the highest bench.

JUDGMENT

SARKARIA, J. (for himself and on behalf of A.C. Gupta, N. L. Untwalia and Jaswant Singh JJ.) — By a short Order, dated December 8, 1977, we (by majority) accepted these two appeals and announced that a reasoned judgment shall follow in due course. Accordingly, we are now rendering the same.

2. Whether a High Court Judge, who sends to the President, a letter in his own hand, intimating to resign his office with effect from a future date, is competent to withdraw the same before that date is reached - is the principal question that falls for consideration in these two appeals, directed against a judgment, dated October 28, 1977, of the High Court of Judicature at Allahabad, allowing the writ petition of Shri Gopal Chandra Misra, respondent herein, and issuing a direction under Art. 226 of the Constitution, restraining Shri Satish Chandra (hereinafter referred to as Appellant 2) from functioning as a Judge of the Allahabad High Court.

3. Appellant 2 was appointed to the High Court of Allahabad as Additional Judge on October 7, 1963, and a permanent Judge on September 4, 1967. He will be attaining the age of 62 years on September 1, 1986. On May 7, 1977, he sent a letter under his hand addressed to the President of India, through a messenger. This letter may be reproduced as below :-

"To

The President of India,

New Delhi.

Sir,

I beg to resign my office as Judge High Court of Judicature at Allahabad.

I will be on leave till 31st of July, 1977. My resignation shall be effective on 1st of August, 1977.

With my respects,

Yours faithfully,

Sd/- Satish Chandra."

4. On July 15, 1977, Appellant 2 wrote to the President of India another letter in these terms :-

"To

The President of India,

New Delhi.

Sir,

I beg to revoke and cancel the intention expressed by me to resign on 1st of August, 1977, in my letter dated 7th May, 1977. That communication may very kindly be treated as null and void.

Thanking you and wishing to remain.

Yours sincerely,

Sd/- Satish Chandra."

5. The receipt of this letter of revocation or withdrawal, dated July 15, 1977, was acknowledged by Shri T. C. A. Srinivasavardharn, Secretary Ministry of Law, Justice & Company Affairs, New Delhi, as per his D. O. No. 2/14/77-Jus., dated July 28, 1977. By a separate letter, Appellant 2 cut short his leave and resumed duty as a Judge of the Allahabad High Court on July 16, 1977 and from July 18, 1977, he commenced sitting in the Court and deciding cases.

6. On August 1, 1977, Shri Gopal Chandra Misra, an Advocate of the High Court, filed a petition under Article 226 of the Constitution, contending that the resignation, dated May 7, 1977, of Appellant 2, having been duly communicated to the President of India in accordance with the provisions of Article 217 (1), Proviso (a) of the Constitution, was final and irrevocable, and as a result, Appellant 2 had ceased to be a Judge of the Allahabad High Court with effect from May 7, 1977, or, at any rate, with effect from August 1, 1977; therefore, his continuance to function as a Judge from and after August 1, 1977, was usurpation of the office of a High Court Judge, which was a public office. On these premises, the writ petitioner prayed for a writ order or direction in the nature of quo warrants calling upon Mr. Satish Chandra to show under what authority he was entitled to function and work as a Judge of the High Court. The petition came up for final hearing before a Bench of five learned Judges of that Court, which by a majority of 3 against 2 allowed the writ petition and issued the direction aforesaid. Against that judgment, these two appeals, on a certificate granted by the High Court under Arts. 132 and 133 (1) of the Constitution have been filed before this Court. Civil Appeal No. 2677 of 1977 has been preferred by the Union of India, and Civil Appeal No. 2655 of 1977 by Shri Satish Chandra.

7. A preliminary objection was raised by Shri Yogeshwar Prasad, learned counsel for the respondent, Shri Gopal Chandra Misra, that the Union of India has

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1978 Supreme(SC) 59

Cases Referred (3)