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TMI Blog1994 (8) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... ision Bench consisting of S.S. Sodhi and K.C. Garg JJ. The writ petition was admitted and ex parte ad-interim stay was granted. After notice, when the matter came up for hearing before a Bench consisting of S.S. Sodhi and R.S. Mongia, JJ. it was directed to be listed for final hearing on 3.8.92. The then Chief Justice Mr. Rama Jois Proceeded on leave on 1.8.92. Thereupon, S.S. Sodhi, J. became the Acting Chief Justice. 4. On 3.8.92, when the writ petition was listed before the Tax Bench comprising of A.P. Choudhary and N.K. Sodhi, JJ, S.S. Sodhi, J. directed the writ petition to be delisted from the Tax Bench before which it was listed and transferred the case presided over by S.S. Sodhi, J. himself. It appears this was the only case which was directed to be delisted from the Tax Bench and transferred to the Division Bench presided over by the then Acting Chief Justice. 5. On 21.8.92, Chief Justice Mr. Rama Jois returned from leave and resumed charge. On 24.8.92 this Court in Special Leave Petition (Civil) No. 7700 of 1992 arising out of a connected Writ Petition (Civil) No. 3864 of 1992 directed the case be remanded to the High Court ordering expeditious disposal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f some consternation and apprehension in his mind since allegations of malafides had been levelled against him by the first respondent who is said to be a political opponent. Therefore, on 4.10.93 an application C.M. No. 9909 of 1993 was moved requesting the Division Bench to transfer the matter from their Bench. Notice was issued and the hearing was fixed on 6.10.93. 10. After hearing the arguments, the application for transfer was dismissed. However, time was granted till 12.10.93 to approach this Court and it was indicated that thereafter the matter would be taken up on day to day basis. 11. Appellant assails in this appeal the order refusing transfer. During this civil appeal, an additional affidavit was filed on behalf of the appellant giving details of the course which the writ petition took. He would have it, on 3.8.93, when S.S. Sodhi, J. took over as Acting Chief Justice the writ petition was listed at Serial No. 342 before A.P. Choudhary and N.K. Sodhi, JJ. S.S. Sodhi, J. orally directed the Registrar (Judicial), Shri B.R. Gulati that the writ petition along with connected writ petitions be listed before a Bench presided over by the then Acting Chief Jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eves that the Executive does not file applications of this nature irresponsibly and with a motivation to have the mater heard by one Bench or another. The deponent has disclosed these facts as they have come to his knowledge, so that the court may not have an impression that the application was motivationally filed and that by the filing of this application, the dignity of the Court is being compromised. The deponent herein respects the highest traditions and dignity of the Court, and would in no circumstances ever compromise it. The facts set out herein all stated instead of show that there was genuine apprehension in the mind of the deponent and that these facts were to the knowledge of the learned judge in the matter. Since the petition involved allegations of personal malafides against the deponent, and since the deponent was joined as a party respondent, the circumstances as set out hereinabove warranted that the Learned Judge need not have heard the matter himself, and that the Hon'ble Chief Justice would have, in the circumstances, directed the matter to be listed before any appropriate Bench. It is not that the deponent was, and is wishing the matter to be heard by any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e application and in the additional affidavit filed by him. 17. Mr. Kapil Sibal, learned Counsel for the appellant submits that transfer of one case alone to the file of the then Acting Chief Justice would be enough to establish his interestedness. The right to fair trial is guaranteed under the Constitution. It entitles a litigant to adjudication of a cause by a judge who is perceptibly and demonstrably unbiased and without prejudice. In order to dispel any suspicion of a litigant a judge should refuse himself even though the judge is not conscious of any bias or prejudice. Such a prejudice, a state of mind, cannot be proved by direct and positive evidence. Therefore, it cannot be judged on the basis of an objective standard but from the point of view of the litigant. In support of his submission learned Counsel cites the following cases: Ex Parte American Steel Barrel Co. 57 Law Ed. U.S. 1379 at 1383-84. Bell v. Chandler 569 Federal Report 2d Series 556 at 558-559 where the test adopted is not bias or prejudice alone but the bent of mind that may prevent impartiality. United States v. Scuito 531 Federal Report 842 at 845 wherein the test is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t ruling will squarely apply to the facts of this case. To the same effect is the case in Gujarat Electricity Board v. Atmaram Sungomal Poshani (1989)IILLJ470SC . No doubt, reasonable apprehension of bias which a reasonable person can entertain may be a good ground for transfer. That does not mean a litigant has a right to ask for a change of Bench. A mere statement of a party to a proceeding about his entertaining in apprehension may be inadequate as the facts of this case make it quite clear. Even in the later affidavits filed, the source of information has not been disclosed. The requirement of law is, there must be such a disclosure as seen from The Barium Chemicals Ltd. v. The Co. Law Board, Sukhwinder Pal Bipin Kumar v. State of Punjab: [1982]2SCR31 and Smt. Savithramma v. CECIL Naronha 21. The allegations relating to bias have paled into insignificance since the learned Judge (S.S. Sodhi, J) against whom bias is alleged is no longer in the High Court Punjab and Haryana. Normally, therefore, we would have rest content with the dismissal of this appeal as having become really infructuous. But certain unhappy events have taken place in this case which we view with con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that was the sort of merely satisfy ourselves that that was the sort of impression that might reasonably get abroad. The term 'real likelihood of bias' is not used, in my opinion, it import the principle in R v. Sussex Justices to which Salmon J., referred. It is used to show that it is not necessary that actual bias should be proved. It is unnecessary, and, indeed might be most undesirable, to investigate the state of mind of each individual justice. 'Real likelihood' depends on the impression which the court gets from the circumstances in which the justices were sitting. Do they give rise to a real likelihood that the justices might be biased? The court might come to the conclusion that there was such a likelihood, without impugning the affidavit of a justice that he was not in fact biased. Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although, nevertheless, he may have allowed it unconsciously to do so. The matter must be determined upon the probabilities to be inferred from the circumstances in which the justices sit. 26. The present day law in Engl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. It appears the attempt was to avoid the Bench headed by S.S. Sodhi, J. 28. We are unhappy that the appellant should have felt compelled to seek information as to what transpired within the judicial fortress among the judicial brethren. Judges should not be dragged in and their names mentioned in such matters. Rightly the former Chief Justice Mr. Rama Jois refused to allow his name to be quoted considering it improper to talk about any conversation which might have taken place between the Chief Justice and the other Judges of the High Court in their Chambers. 29. Then, we came to G.R. Majithia, J. a senior judge. On 20.10.92 he sought an explanation from the Registrar (Judicial) as to why the case was transferred from the Tax Bench to the Bench presided over by the then Acting Chief Justice, S.S. Sodhi, J. Secondly, on 22.10.92, he wrote a letter to the Registrar (Judicial) calling for a report. 30. This letter, at the direction of the then Acting Chief Justice was placed in the file. Again, on 13.9.93 the another letter was written by Majithia, J. to the Chief justice. 31. We have perused these letters. We are of the view that learned judge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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