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HIGH COURT OF CALCUTTA
P. N. MUKHERJEE, SANKAR PRASAD MITRA, R. N. DUTT
JYOTI PROKASH MITTER - Appellant
Versus
HONble MR. JUSTICE H. K. BOSE, CHIEF JUSTICE OF HIGH COURT, CALCUTTA - Respondent
A. F. O. O. 56 Of 1962
Decided On : MARCH 7, 1963
Whether a Rule Nisi should issue in the instant case. The Rule was refused by our learned brother Banerjee, J. , and on appeal, G. K. Mitter and Laik, JJ. , differed, the former holding that Banerjee, J. was right in refusing the Rule, the latter holding the contrary. This difference led to the present reference, presumably under Clause 36 of the Letters Patent, and, apparently, the importance of the matter impressed the learned Chief Justice to constitute eventually a Special Bench -- this Bench of three Judges, -- to hear and determine the reference.
Fact of the Case:
The appellant was appointed an Additional Judge of this Court on February 11, 1949. He was matte a permanent Judge on January 21, 1950. At or about the time of his appointment he gave to the then Chief Justice the late Sir Arthur Trevor Harris, December 27, 1904 as his date of birth. On the 9th April, 1959, the Home Minister, Government of India, wrote to the Chief Minister of West Bengal seeking to reopen the age of the appellant on the basis of a certificate granted, to him of the passing of the Matriculation Examination of the Patna University. His name was published in the Bihar and Orissa Gazette and from this publication it seems that, he was born on December 27, 1901. The Home Ministry, Government of India also ascertained that the appellant appeared at the examination for the Indian Civil Service in 1923 and at that time also he gave December 27, 1901 as date of birth. On April 17, 1959 the Chief Justice of this Court wrote to the appellant to send a full statement as early as possible on all the points, involved and also to inform the Chief Justice as to whether there was any other material for a correct ascertainment of the appellant's date of birth. On May 27, 1959 the appellant repudiated the suggestion that he had made a false declaration of his age and asserted that the matter could not in any event be reopened. In July 1959 Chief Justice Harris died. On August 12, 1953 the appellant wrote a letter attempting to explain the discrepancy of his age given at the time of the Civil Service Examination. He said that it must have been obtained in England from his relations in India and was presumably based on his Matriculation Certificate. He did not recollect alter 36 years as to what had actually happened. He reiterated, however, that the matter could not be reopened. On September 29, 1959 the Chief justice of this Court wrote to the appellant that the Home Ministry, Government of India had decided with the concurrence of the Chief Justice of India to treat the age of the appellant as stated in his Matriculation Certificate as final. The appellant immediately challenged the authority of the Home Minister to determine the age of a High Court Judge. On September 30, 1959 the appellant made accusations against the then Chief Justice of India for taking adverse views against iiim for ulterior reasons, Thereafter, there was an offer of arbitration by the Home Minister to the appellant. The appellant did not give any reply in spite of a reminder. On November 1, 1960, the Home Minister, Government of India, wrote that the appellant should be definitely told that December 27, 1901 was his date of birth and that he would have to retire on December 27, 1961 on attain-ing the age of 60.
Finding of the Court:
The appellant has made out a prima facie case for the issue of a Rule Nisi on his application under Article 226 of the Constitution, as prayed for in the relevant prayer (i) of the said application.
Issues: Whether a Rule Nisi should issue in the instant case.
Ratio Decidendi: The appellant has made out a prima facie case for the issue of a Rule Nisi on his application under Article 226 of the Constitution, as prayed for in the relevant prayer (i) of the said application. The appellant has the legal right to act as a Judge and to demand and enjoy the rights and privileges, attached to that high office, until he attained the age of 60 (sixty) years. That, indeed, is clear on the Constitution (Vide Article 217 (1) ). Then starts the dispute. The appellant claims that he has not attained the age of 60 (sixty) years. The respondent contends and that was his contention before G. K. Mitter and Laik JJ. too, that the appellant has passed that superannuation age. Upon this contention, the learned Advocate General made a two-fold submission: (1) That a disputed question of fact, namely, as to the appellant's age, has arisen and that is enough for the rejection of this instant application as the writ jurisdiction under Article 226 of the Constitution cannot be invoked at any rate, it is not appropriate, where a disputed question of fact is involved and requires to be investigated and determined; (2) that, even assuming that the said dispute can be decided in the instant proceeding, the verdict must still be against the appellant upon the materials, furnished by his own application and its annexures.
Final Decision: Rule Nisi should issue in this case in terms of Clause (i) of the prayers in the petition.
( 1 ) A simple question "whether a Rule Nisi should issue in the instant case" has assumed intriguing importance. The Rule was refused by our learned brother Banerjee, J. , and on appeal, G. K. Mitter and Laik, JJ. , differed, the former holding that Banerjee, J. was right in refusing the Rule, the latter holding the contrary. This difference led to the present reference, presumably under Clause 36 of the Letters Patent, and, apparently, the importance of the matter impressed the learned Chief Justice to constitute eventually a Special Bench -- this Bench of three Judges, -- to hear and determine the reference.
( 2 ) THE constitution of the Special Bench and the reference were made by the following order of the learned Chief Justice :"let this matter be placed for disposal before a bench consisting of: mr. Justice P. N. Mookerjee, mr. Justice Sankar Prasad Mitra and mr. Justice R. N. Dutt. "following upon a minuted order of the Appeal Court (G. K. Mitter and Laik, JJ.) in the wake of their differing judgments, that minuted order running as follows: "as there has been a difference of opinion between us, the matter will be placed before the learned Chief Justice to be dealt with according to law. "
( 3 ) I have set out above the relevant orders, on which are founded this instant reference and the Constitution of this Special Bench for the hearing and determination of the same, with a view to study them in the context of Clause 36 of the Letters Patent, to which ultimately one must turn in such matters for necessary legal sanction and for ascertaining the scope of the reference and the extent and implication of the authority of the Bench, constituted to hear and determine the same.
( 4 ) THAT Clause (Clause 36), to Quote its relevant part, stands as follows:"any function which is hereby directed to be perform-ed by the High Court in the exercise of its appellate jurisdiction may be performed by any Division Court thereof, appointed or constituted for such purpose in pursuance of Section 108 of the Government of India Act, 1915; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided they shall state the point upon which they differ and the case shall then be heard upon that point by one cr more of the other Judges and the point shall be decided according to the opinion of the majority ot the Judges who have heard the case including those who first heard It. "
( 5 ) A look at the above extract is enough to convince one that it requires, in a case like the present, the learned Judges, differing in opinion, to state their point ot difference and the Judge or Judges, to whom the reference is ultimately made, are required to state his or their opinion on that point, which will then be decided in accordance with the opinion of the majority of the Judges, who have heard the case including those who first heard it.
( 6 ) STRICTLY, then, under the law, the point of ditter-ence should be stated by the learned differing Judges and, upon that point, the case should be heard by the referee Judge or Judges, who shall express his or their opinion, as the case may be, upon the said point. In actual practice, however, the learned differing Judges have not always stated their point of difference and, sometimes, that has made the reference abortive or infructuous, necessitating a remit to the learned differing Judges for regularising matters for an appropriate reference. On certain occasions, however, when the point of difference was apparent or manifest on the face of the differing judgments and/or was reasonably certain or readily ascertainable, the inconvenience of a remit was avoided and the defect or irregularity was ignored or waived and, on the point of difference, formulated
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