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2018 Supreme(HP) 2297
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Tarlok Singh Chauhan, Sandeep Sharma, JJ.
Shri S.C. Kainthla - Petitioner
Versus
State of H.P. & Others - Respondents
CWP Nos.2061 of 2018 alongwith CWP 2292 of 2018
Decided On : 12-12-2018
For the Petitioner:Mr.Shrawan Dogra, Senior Advocate with Ms.Nishi Goel, and Mr.R.K. Bawa, Senior Advocate with Mr.Prashant Kumar Sharma
For the Respondent:Mr.Vinod Thakur, Additional Advocate General with Mr.Bhupinder Thakur, Deputy Advocate General, Ms. Shalini Thakur, Mr. R.L. Sood, Senior Advocate with Mr.Arjun Lall, Mr.B.C. Negi, Senior Advocate with Mr.Pranay Pratap Singh Advocates.
Headnote:
JUDGEMENT - RECUSAL - INTEREST IN SUBJECT MATTER - APPEARANCE OF BIAS - REASONABLE APPREHENSION OF BIAS - TEST - JUDICIAL OATH - TRANSPARENCY IN PROCEDURE - DUTY TO INDICATE REASONS FOR RECUSAL - LITIGANTS' RIGHT TO KNOW REASONS FOR RECUSAL - CONFLICT OF INTEREST - AUTOMATIC DISQUALIFICATION - REAL DANGER TEST - REASONABLE SUSPICION TEST - PINOCHET CASE - NON-PECUNIARY INTEREST - IMPARTIALITY - JUDICIAL INDEPENDENCE - JUDICIAL ACCOUNTABILITY - JUDICIAL ETHICS - BANGALORE PRINCIPLES OF JUDICIAL CONDUCT, 2002 - RESTATEMENT OF JUDICIAL VALUES OF JUDICIAL LIFE - DUTY TO UPHOLD THE CONSTITUTION - DUTY TO ADMINISTER JUSTICE WITHOUT FEAR OR FAVOUR - DUTY TO DISCLOSE REASONS FOR RECUSAL - DUTY TO RESIST PRESSURE - DUTY TO MAINTAIN INTEGRITY OF THE INSTITUTION - DUTY TO ENSURE TRANSPARENCY IN PROCEDURE - DUTY TO ENSURE LITIGANTS' RIGHT TO KNOW REASONS FOR RECUSAL - DUTY TO AVOID FORUM SHOPPING - DUTY TO AVOID MISCHIEVOUS LITIGANTS - DUTY TO DISCOURAGE PARTIES FROM SEEKING DISQUALIFICATION OF JUDGES TO AVOID ADVERSE DECISIONS.
Fact of the Case:
The petitioners, who were promotee judicial officers, filed a petition seeking a declaration of seniority over the respondents, who were direct recruits. The High Court constituted a Committee of two Judges, including Justice Sandeep Sharma, to submit a report in compliance with the directions of the Supreme Court in All India Judges' Association & Ors. v. Union of India & Ors. The Committee submitted its report, which was accepted by the Full Court of the High Court and subsequently submitted to the Supreme Court. However, the Supreme Court declined to entertain an application seeking to implement the report, leaving the parties to pursue other remedies. The petitioners then approached the High Court again, seeking implementation of the report and consequential benefits. The respondents objected to Justice Sandeep Sharma hearing the matter, arguing that he had already formed an opinion on the issue of seniority while serving on the Committee. Justice Sandeep Sharma recused himself from hearing the matter, and the issue of recusal was referred to a Division Bench.
Finding of the Court:
The Division Bench held that Justice Sandeep Sharma should recuse himself from hearing the matter in the interest of justice. The Bench relied on the following principles: * A Judge is required to be impartial and to avoid any appearance of bias. * A Judge should recuse himself from hearing a case if there is a reasonable apprehension of bias. * The test for recusal is whether a fair-minded and informed person, having considered all the facts, would reasonably apprehend that the Judge would not act impartially. * A Judge has a duty to uphold the Constitution and to administer justice without fear or favour. * A Judge has a duty to be transparent in his or her decision-making and to indicate reasons for recusal. * Litigants have a right to know the reasons for a Judge's recusal. * A Judge should avoid forum shopping and discourage parties from seeking disqualification of Judges to avoid adverse decisions.
Issues: 1. Whether Justice Sandeep Sharma should recuse himself from hearing the matter in the interest of justice? 2. What are the principles governing recusal of Judges?
Ratio Decidendi: The Division Bench held that Justice Sandeep Sharma should recuse himself from hearing the matter in the interest of justice. The Bench relied on the following principles: * A Judge is required to be impartial and to avoid any appearance of bias. * A Judge should recuse himself from hearing a case if there is a reasonable apprehension of bias. * The test for recusal is whether a fair-minded and informed person, having considered all the facts, would reasonably apprehend that the Judge would not act impartially. * A Judge has a duty to uphold the Constitution and to administer justice without fear or favour. * A Judge has a duty to be transparent in his or her decision-making and to indicate reasons for recusal. * Litigants have a right to know the reasons for a Judge's recusal. * A Judge should avoid forum shopping and discourage parties from seeking disqualification of Judges to avoid adverse decisions.
Final Decision: Justice Sandeep Sharma recused himself from hearing the matter.
JUDGMENT :
Sandeep Sharma, J.
Initially, on 5th September, 2018 cases captioned hereinabove came to be listed before a Bench comprising of Justice Dharam Chand Chaudhary and Justice Vivek Singh Thakur, JJ., however, on that day Justice Vivek Singh Thakur, J. recused. Careful perusal of subsequent orders dated 13.9.2018 and 14.9.2018 passed by Division Bench suggest that two Hon’ble Judges; namely; Justice Chander Bhushan Barowalia and Justice Ajay Mohan Goel, JJ. have also recused.
2. On 2nd November, 2018, matter came to be listed before this Division Bench. However, on that day learned counsel representing respondents No.3 and 4 stated that his clients have exception to this matter being heard by one of us (Justice Sandeep Sharma,J.) because the petitioners have not only relied upon the report, co-authored by him, but, have also sought implementation of the same.
3. On 16th November, 2018, learned counsel representing respondents No.3 and 4 again reiterated his aforesaid submission and accordingly this Court directed him to file written objections, if any, to this effect. Pursuant to aforesaid order, aforesaid respondents have filed their affidavits, which are verbatim same. It would be profitable to take note of contents of one of the affidavits.
4. In the aforesaid affidavits respondents have stated that Hon’ble Mr.Justice Vivek Singh Thakur and Hon’ble Mr.Justice Sandeep Sharma (for short 'Judges Committee’), had prepared/authored the report Annexure P-12 in question, knowing fully well that the same was to be considered for its judicial correctness and applicability by the Hon’ble Apex Court, in terms of order dated 28.4.2016, passed by the Hon’ble Apex Court in I.A. No.334 of 2014 in Writ Petition (Civil) No.1022 of 1989, titled: All India Judges Association & Others vs. Union of India & Others and as such it cannot be said that aforementioned report authored by Hon’ble Judges Committee is a mere exercise on Administrative side, rather said report is result of judicial scrutiny and application of the minds of the Members of the Hon’ble Judges Committee. Respondents have stated in the aforesaid affidavits that there is reasonable apprehension in their minds that they may not be able to persuade me (Justice Sandeep Sharma) to change my mind and thereafter return a judicial finding, which is not in consonance with the judicial conclusions already reached by the Hon’ble Judges Committee in the report Annexure P-12 in question.
5. Mr.R.L. Sood, learned Senior Counsel representing respondents No.3 and 4, while inviting the attention of this Court to para-9 of affidavit, which has otherwise been taken note hereinabove, contended that though deponents have complete and absolutely firm faith, and believes in the fairness in the present Bench, but since one of us (Justice Sandeep Sharma,J.) has authored report Annexure P-12, which is being relied upon by the petitioners, it would be in the interest of justice in case Justice Sandeep Sharma,J. recuses from hearing the case. While referring to the report Annexure P-12, Mr.Sood made a serious attempt to persuade this Court to agree with this contention that Hon’ble Members of Committee, while furnishing its report in continuance to orders passed by Hon’ble Apex Court, has not merely decided claims and counter claims of parties rather has returned categorical findings in terms of directions issued by Hon’ble Apex court on 28.4.2016 in I.A. No.334 of 2014 in Writ Petition (Civil) No.1022 of 1989.
6. Mr.Sood further contended that perusal of specific reference made to Hon’ble Judges Committee for adjudication itself suggests that report Annexure P-12 is result of judicial scrutiny, based upon judgments passed by Hon’ble Apex Court in All India Judges’ Association and Others vs. Union of India and Others (2002) 4 SCC 247 and All India Judges’ Association and Others vs. Union of India and Others (2010) 15 SCC 170 (for short 'All India Judges Association’) and as such it would not be proper and
