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TMI Blog1995 (10) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... nctioning led to litigation and therein the making of an order even by this Court about its functioning. However, some grievance persisted in those favouring creation of the Cuttack Bench and a contempt petition was filed by an advocate against the Chief Secretary to Government of Orissa, Ramakanta Rath and the Chairman of the Tribunal, A.K. Ray. That contempt petition (Org. Crl Misc. Case No. 73 of 1992) was decided by an order dated 8.5.1992. Reference to this order of the High Court is made because of its reference in the impugned order of the Tribunal. 4. Respondent No. 3 D.N. Mishra was posted at the relevant time as Additional Secretary to the Revenue Divisional Commissioner, Central Division at Cuttack and in addition he held the charge of Additional Registrar of the Cuttack Bench of the Tribunal. Apparently, the appellant as Chairman of the Tribunal was not satisfied with the performance of D.N. Mishra as the Additional Registrar of the Tribunal. The appellant wrote a confidential letter dated 10.4.1992 to the Chief Secretary R.K. Rath recommending that any other officer may be deputed to function as the Additional Registrar. In that letter, the appellant had stated that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Cuttack. The High Court did not hold anything against the Chairman of the Tribunal who was the 2nd respondent in the contempt petition. The High Court actually recorded its satisfaction with the action taken by the Chairman of the Tribunal and concluded as under : ...Secondly, we do hope that the Registry at Cuttack functions properly. We may also state that we have noted with satisfaction the statement made in the affidavit filed on 30.4.1992 that remedial measures in this regard, after knowing about the complaints from his Advocates, have already been taken by the Chairman. 6. There is thus nothing in the High Court's order against the Chairman of the Tribunal, the appellant, and in fact there is a record of its satisfaction with the steps taken by the Chairman to ensure proper functioning of the Cuttack Bench in accordance with its directions. It is in this background the order dated 11.5.1992 was made by the State Government transferring D.N. Mishra to the post of Additional District Magistrate, Koraput, which had the effect of this ceasing to function as the Additional Registrar of the Cuttack Bench of the Tribunal. 7. Respondent No. 3 challenged his transfer order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts and adverse remarks have been made against the appellant as Chairman of the Tribunal while quashing the transfer order of D.N. Mishra. 8. We are informed that D.N. Mishra has thereafter been transferred by the Government and he is no longer functioning as the Additional Registrar of the Cuttack Bench of the Tribunal. The quashing of the transfer order is not challenged in this appeal. The only question is of the legality and propriety of the critical comments and adverse remarks made against the appellant in the impugned order dated 26.8.1993. 9. The background in which the transfer order dated 11.5.1992 was issued by the Government posting D.N. Mishra as Additional District Magistrate, Koraput resulting in his ceasing to function as Additional Registrar of the Cuttack Bench of the Tribunal is sufficient to indicate that the transfer of D.N. Mishra was made in public interest and it was to ensure proper functioning of the Cuttack Bench of the Tribunal. The attitude of D.N. Mishra as Additional Registrar of the Cuttack Bench had led to legitimate grievance in the Bar requiring the Chairman of the Tribunal to take prompt steps for proper functioning of the Registry at the Cutta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Bench, had no reason to join hands with the Chief Secretary and though there was no notice to the Chairman by the Hon'ble High Court in the contempt matter, he volunteered himself to be dragged into the litigation and through a common lawyer both Respondent-2 and the Chairman of the Tribunal filed their affidavits stating to have provided already all facilities to the Registry at Cuttack. The Hon'ble High Court did not believe the plea taken by both Respondent-2 and the Chairman of the Tribunal and strongly commented upon it to be an 'eye wash' and 'travesty of truth'. We are in absolute agreement with judgment of the Orissa High Court in this regard.... Now we come to the litigation stage in the present case. Even during pendency of this litigation a judicial restraint which was expected from any judicial officer was given a complete go by. Whether the petitioner had any case or not. Whether he would have succeeded or failed in the litigation is a complete different position altogether. The amount of haste, anxiety and interest shown by the Chairman of the Tribunal to hear and dispose of this case in a vacation Bench without the case being listed sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as to what for the Chairman of this Tribunal against whom no notice of contempt had been issued chose to appear before the High Court alongwith the Chief Secretary through common lawyer. It is suggested that he did so only to bail out the Chief Secretary from a difficult situation. This suggestion appears to be quite reasonable and acceptable.... Unfortunately, for the Chairman of this Tribunal and the Chief Secretary of the State Government, adverse comments were made by the High Court and it was said that the aforesaid plea advanced before the High Court was untrue and was an eyewash.... Applicant's assertion in this regard appear to be reasonable and true. Events, prior and subsequent, to issuance of the impugned order of transfer in respect of the applicant bear out such an inference. I express my extreme unhappiness to be in a situation like this and associate myself with the observations made in regard to the actions of the Chairman of this Tribunal which became necessary while dealing with the allegation of malafide advanced against the Chief Secretary, which again became necessary for disposal of the present proceeding. 13. A bare perusal of the High Court's o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man and Member (Administrative)who constituted the Division Bench of the Tribunal have all by now retired. It is, therefore, not necessary to discuss these remarks any further. 14. Before parting with this case, we consider it necessary to refer to the observation in some earlier decisions of this Court in similar context indicating the need for sobriety and restraint in making adverse and critical comments. In Niranjan Patnaik v. Sashibhushan Kar and Anr. 1986CriLJ911 , in a similar context, after referring to earlier authorities, it was stated as under : It is, therefore, settled law that harsh or disparaging remarks are not to be made against persons and authorities whose conduct comes into consideration before courts of law unless it is really necessary for the decision of the case, as an integral part thereof to animadvert on that conduct. We hold that the adverse remarks made against the appellant were neither justified nor called for. (at page 483) In State of Madhya Pradesh and Ors. v. Nandlal Jaiswal and Ors. [1987]1SCR1 , one of the questions raised was the propriety of certain observations and some disparaging remarks made by a learned Judge of the High Court in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is own in deciding cases or in any phase of the decisional function. But the facts of the present case against the background of the views expressed by this Court apropos to the earlier strictures against the Government, should have warned B.M. Lal, J., no matter how clear he was in his mind, not to criticise the appellant. The avoidance of even the appearance of bitterness, so important in a Judge required him not to cast aspersions on the professional conduct of the appellant. (at page 116) Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be a constant theme of our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect; that is, respect by the judiciary. Respect to those who come before the Court as well to other co- ordinate branches of the state, the Executive and Legislature, There must be mutual respect. When these qualities fail or when litigants and public believe that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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