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TMI Blog1971 (1) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be attached to the evidence. Appreciation of evidence is entirely left to the President and it is not for the Courts to hold that on the evidence placed before the President on which the conclusion is founded, if they were called upon to decide the case they would have reached some other conclusion. - Civil Appeal No. 52 of 1968 - - - Dated:- 21-1-1971 - Shah, J.C. (CJ), Sikri, S. M. , Bhargava, Vishishtha, Hegde, K. S. , Grover, A. N. And Dua, I. D. ,JJ. For the Appellant : Jagadish Swarup, Solicitor-General, Ram Panjwani and S. P. Nayar For the Respondent : The respondent appeared in person. JUDGMENT The Judgment of the Court was delivered by Shah, C. J. Joyti Prakash Mitter-hereinafter called 'the respondent-was a candidate for the matriculation certificate examination of the Bihar University, held in April, 1918. In the Bihar Government Gazette declaring him successful the age of the respondent was shown to be 16 years 3 months in April 1918. The respondent offered himself as a candidate for admission to the Indian Civil Service at an examination held in 1963 by the United Kingdom Civil Service Commission. On that occasion he declared that his d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a party respondent praying for, an order directing the Chief Justice to treat him as continuing in office till December 27, 1964 and to assign judicial work to him. He urged that the decision of the Government of India in pursuance of which the Chief Justice of the High Court had acted was illegal, arbitrary and uncon- stitutional and that the Chief Justice had no Jurisdiction to act upon that decision. That petition was dismissed in limine. But a Special Bench of the High Court in appeal filed by the respondent directed that rule nisi be issued. This Court dismissed an appeal against the order of the High Court: Hon'ble Mr. Justice Himansu Kumar Bose, Chief Justice, High Court, Calcutta and another v. Jyoti Prakash Mitter(A.I.R. [1964] S.C. 1636). A Special Bench of five Judges of the Calcutta High Court then heard the petition. The petition filed by the respondent was ordered to be dismissed and the rule was discharged. This Court in appeal against the order of the High Court : Jyoti Prakash Mitter v. Hon'ble Mr. Justice Himansu Kumar Bose, Chief Justice, High Court, Calcutta and Another([1965] 2 S.C.R.53) gave certain directions. To appreciate the reasons for mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have a formal decision of the President in terms of- the said provision. The Attorney-General has conceded that this contention of the appellant is well founded. He, therefore, stated to us on behalf of the Union of India that in case our decision on the main point is rendered against the Union of India, the Union of India will place the matter before the President within a fortnight after the pronouncement of our judgment inviting him to decide the question about the appellant's age under Art. 217 (3). Both parties have agreed before us that in case the decision of the President is in favour of the appellant, the appellant will be entitled to claim that he has continued to be a Judge notwithstanding the order passed by the Chief Justice of the Calcutta High Court and will continue to be a Judge until he attains the age of superannuation. Thereafter the President of India directed the Secretary, ,Ministry of Home Affairs, to call upon the respondent to make ,such representation as he may wish to make in the matter and produce such evidence as he may .sire to produce in support of .his claim that his correct age should be determined on the basis of his date of birth be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentation, with a request that representation together with the original documents, which he had handed over to the Ministry of Home Affairs, be called for from that Ministry and be placed before the President. On December,21, 1964 the Secretary, Ministry of Home Affairs sent a reply to the letter directing the respondent to send all the. evidence that he desired to rely upon and informing him that no oral evidence of witnesses will be received, the respondent being free to submit affidavits of witnesses. Referring to his request for personal hearing it was stated in the letter that the President will decide after considering the evidence produced by the respondent whether any personal hearing would be necessary, and that should he decide that you should be heard in person, you will be informed in due course . On December 31, 1964 the originals of the horoscope and the almanac submitted by the respondent were sent to the Director of the Central Forensic Institute, Calcutta by the Ministry of Home Affairs with the request that the horoscope and the entry in ink in the margin of the almanac be examined .,with a view to determine its genuineness with particular reference to the age o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the documents, because the test required could not be made without extracting parts of the documents, but later wrote that the mutilation of documents by the chemical test was not desirable and moreover that by such application it would not be possible to give an absolute date to the document. Thereafter the Director reported on a limited examination that could be carried out that it was not possible to give any opinion relating to the age of the ink writing on the almanac , but in his view the horoscope could not have been written earlier than 1909, because the paper on which it was written contained bamboo pulp which was not brought into the use by the Titaghur Mills in the manufacture of paper before 1912. The Director said nothing about the age of the ink in which the After consultations between the Ministry of Home Affairs and the Ministry of Law, the Home Ministry sent certain old writings of the year 1904, 1949, 1950 and 1959, and requested the Director to determine the age of the writing of the disputed horoscope and marginal note in the almanac by comparison. The Director on April 17, 1965 wrote that it was impossible to give any definite opinion by such comparisons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith a forwarding letter by which the respondent was informed that if he had any comments to make on the opinion expressed by the Director they may be submitted and that if the respondent desired he may also adduce evidence in rebuttal in the form of expert opinion supported by proper affidavit, and that the comments, evidence and affidavits, if any, may be sent within one month of the letter. On receipt of the letter of the Home Secretary the respondent sent a telegram addressed to the Home Secretary on September 1, 1965, praying that the President may call for all papers and documents, if not already sent for and grant him an audience, If at all necessary . The respondent also wrote a letter on that day submitting that the evidence tendered by him was conclusive and there was no question of adducing any further evidence or any evidence in rebuttal. He also submitted that the entry in the Bihar and Orissa Gazette (declaring him successful at the matriculation examination) was erroneous and concluded the letter that all relevant documents be placed before the President, and that the President may be graciously pleased to grant him an audience for the purpose of deciding the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis that be was born on 27-12- 1901 . The file containing the advice was then returned to the Pre- sident. It appears however that after the file was received in the President's Secretariat, it was sent to the Secretary, Ministry of Home Affairs for putting it up before the Home Minister before submitting it to the President. The Home Secretary on September 29, 1965 put up the matter before the Home Minister with the following endorsement : A summary of the case will be found at slip 'Z'. The Chief Justice of India has offered his advice in his minute........ after going into the relevant material, H.M. (Home Minister) may recommend to the President ,that the age Shri J. P. Mitter may be determined in accordance with the advice of the Chief Justice of India. Home Minister and the Prime Minister countersigned that endorsement. The file was then placed before the President on the same day i.e. September 29, 1965. The President recorded his decision that he accepted the advice tendered by the Chief Justice of India and decided that the age of Sri Jyoti Parkash Mitter should be determined on the basis that he was born on the twenty-seventh December ninet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommunicated by the letter of the Home Secretary dated October 13, 1965. The learned Judge observed that ,-the Union of India, may, if so advised, place the matter before the President again, within two months from the date of the judgment, inviting him to decide the age of the respondent in accordance with Art. 217 (3). On behalf of the Union of India a prayer for a certificate under Art. 132(1) of the Constitution was made. Observing that the case involved a substantial question of law as to the interpretation of article 217(3) of the Constitution, D.D. Basu, J. granted the certificate prayed for under Art. 132 (1) of the Constitution. This appeal is filed pursuant to that certificate. Under Art. 132 (1) of the Constitution an appeal lies to the Supreme Court from any judgment, decree or final order of a High Court, whether in a civil, criminal or other proceedings, if, the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. A single Judge of the High Court may in appropriate cases certify that the case involves a substantial question of law as to the interpretation of the Constitution. But such a certificate i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was no consultation between the President and the Chief Justice as required by the Constitution; that the President was guided by the Minister of Home Affairs and by the Prime Minister; that the President did not apply his mind to the evidence in the case: that it was obligatory upon the President to grant to the respondent an oral hearing and since hp, did not do so the order was liable to be declared invalid; that in any case the respondent had requested on several occasions that an opportunity be given to him of an oral hearing before deciding the case and that the case was otherwise one in which an oral bearing should have been given; that the executive was closely associated with the President in making the Ministry of Home Affairs, and the papers were sent by the 'Chief Justice of India to the President but were diverted by the Secretary to the President to the Ministry of Home Affairs and after they were received with the advice of the Chief Justice of India they were considered by the Minister of Home Affairs and the Prime Minister and it was only after they assented to the advice of the Chief Justice of India that the papers were submitted to the President and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the President are clear : they show that the President was acting on the advice of the Chief Justice of India and that he decided the age of the respondent on that basis. Any irregularity in the procedure, followed by the Secretary to the President and the Secretary, Ministry of Home Affairs, in sending the papers through the Minister of Home Affairs and the Prime Minister as if the matter dealt with was executive in character, does not, in our judgment, affect the validity of the order made by the President or vitiate it on the ground that he was guided by the Minister for Home Affairs or by the Prime Minister. The argument that there was no consultation between the Chief Justice of India and the President is also without substance. Consultation contemplated by the Constitution is not a , dialogue. Under Art. 217(3) the President is required to consult the Chief Justice of India before determining the question as to the age of a Judge of the High Court. The President must before deciding the age of a Judge under Art. 217 (3) obtain the advice of the Chief Justice of India. For obtaining that advice the President undoubtedly must make available all the evidence in his poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission in support of his case. IL- repeated that request in the letter addressed to the Secretary to the President also on the same day. In reply thereto by letter dated December 21, 1964, the Secretary to the Ministry of Home Affairs informed the respondent that no oral evidence of witnesses would be received but the respondent was free to submit the affidavits of Witnesses as he relied upon. Regarding his request for the personal hearing the respondent was informed that the President will decide after considering the evidence whether any personal hearing was necessary. He was also informed that should the President decide that the respondent should be heard in person, he will be informed in due course. Again in reply to the letter written by the respondent on January 4, 1965, the Secretary to the Ministry of Home Affairs informed the respondent that the procedure to be followed and the opportunities to be given to the respondent were entirely to depend upon the direction of the President and the res- pondent will be given an opportunity to put forward his case about the evidentiary value of the documents produced by him and any decision thereon would be arrived at by the Pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assertion made by the respondent that he was born on December 27, 1904, which was sought to be supported by the almanac with an entry in the margin, a horoscope, an affidavit of Panchkari Banerjee, Secretary to the then Chief Justice Sir Arthur Trevor Harries in which it was stated that the question about the age of the respondent was discussed with the Chief Justice. The truth of the statements made by the respondent had to be judged in the light of his conduct, that he gave no evidence of the date of his birth when he was appointed permanent Judge of the High Court, nor when in 1960 opportunity was given to him to furnish material in support of his contention regarding his age. If upon this evidence the President was of the view that the disputed question may be decided without giving an opportunity of personal hearing, this Court cannot set aside the order on the ground that the order was made without following the rules of natural justice. It was urged that the President left India in the afternoon of September 29, 1965 on a tour of East European countries and that he had not sufficient time to consider the advice tendered by the Chief Justice of India and of going th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e canvassed for the first time in this Court. On the plea that the Chief Justice of India had improperly advised the Minister of Home Affairs as to the conduct of enquiry and the reference, and on that account he had disentitled himself to tender any advice to the President also no allegation was made in the petition and no argument was raised in the High Court. There is no evidence that beside tendering advice to the President in matters of procedure and the final decision, the Chief Justice of India had given any advice to the Ministry of Home Affairs privately or otherwise. The argument that the Chief Justice of India in tend,--ring the advice was influenced by extraneous considerations is not founded upon any materials placed before this Court and must be rejected. The respondent invited our attention to a judgment of the Judicial Committee in B. Surinder Singh Kanda v. Government of the Federation of Malaya.( [1962] A.C. 322). In that case the Commissioner of Police Malaya passed an order dismissing one Kanda, an Inspector of Police, on the ground that at an inquiry before an adjudicating officer Kanda was found guilty of failing to disclose evidence at a criminal trial. Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight do so. The court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the, other side has had access to the Judge without his knowing . Relying upon the observation the respondent contended that a likelihood of prejudice is sufficient to vitiate the proceedings. But in this case we do not think that there was any likelihood of bias or of prejudice. All evidence which the President had to consider had been placed before him at diverse stages. When the notice to show cause was issued, the President had prima facie material before him. Thereafter certain other evidence was collected and that was also placed before the President. it is not suggested that any evidence against the respondent was not disclosed to him. The principal argument raised by the respondent was that the President himself did not determine the question relating to the age of the respondent because he surrendered his judgment to the Chief Justice of India or that he was persuaded to reach his conclusion only because the Home Minister and the Prime Minister had countersigned the notation made by the Secretary of the Mini ..... X X X X Extracts X X X X X X X X Extracts X X X X
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