Appeal No 1028 of 1967
Appeal by special leave from the judgment and order dated May 24 1967 of the Assam and Nagaland High Court in Civil Rule No 425 of 1966
Sarjoo Prasad Barthakur and R Gopalakrishnan for the appellant
Brief facts necessary for present purposes are these
It appears that the appellant was expelled from the Medical College Gauhati on October 26 1966
It is said that the appellant tendered unqualified apology on October 27 1966 and attended classes up to the end of October 1966
The Principal however does not seem to have accepted the apology and when the appellant went on November 2 1966 to deposit the fee for the examination which was to be held from November 4 1966 he was told that as he had been expelled and as the order of expulsion stood no examination fee would be accepted from him It was thereafter that the 815 appellant filed the writ petition on November 3 1966 out of which the present appeal has arisen
It may be mentioned that the High Court was in vacation from September 17 1966 to November 19 1966
Mr Justice section K Dutta was nominated as the Vacation Judge for the vacation and certain dates were fixed on which he was to sit and hear urgent civil and criminal appliciations
One of these dates was October 31 1966 and another was November 10 1966
It was also stated in the order that if there was any matter which was extremely urgent it would be heard on any other day by appointment through the Registrar
It appears that Mr Justice Dutta was also working as a Commission of Enquiry during that time
For that purpose he had to go out of Gauhati which is the seat of the High Court
It seems that Mr Justice Dutta went Away to Sibsagar after the vacation sitting on October 31 1966
Therefore on November 2 1966 he was not available at Gauhati even though he was the Vacation Judge and even though the order relating to vacation sittings said that if any matter was extremely urgent it could be heard on any other day by appointment through the Registrar
As the examination was to be held from November 4 1966 the filing of the writ petition against the order of expulsion was undoubtedly a very urgent matter if any order was to be obtained before November 4 1966
What the appellant is said to have done was this
He gave notice to the Gov ernment Advocate on November 2 1966 at Gauhati as required by the Rules and thereafter went to Sibsagar where Mr Justice Dutta was holding the Commission of Enquiry and pre sented the writ petition there
This petition was entertained by Mr Justice Dutta and be passed interim orders thereon
A copy of the interim order was prepared at Sibsagar and given to the appellant to be taken to Gauhati where it was to be sealed
The appellant took the order to Gauhati and after getting it sealed served it on the university
He was thereupon allowed to sit at the examination subject to the result of the writ petition
It also appears that thereafter the papers relating to the writ petition were sent to Gauhati and the High Court had occasion to deal with the writ petition and passed miscellaneous orders thereon at Gauhati after the vacation was over
Eventually the writ petition came up for hearing in May 1967
A preliminary objection was raised to the maintainability of the petition on behalf of the respondent
It was urged that as Mr Justice Dutta was holding a Commission of Enquiry he could not act as a Judge of the High Court
It was also urged in the alternative that even if he had the jurisdiction to
act as a Judge of the High Court he could not exercise that jurisdiction while at Sibsagar for the seat of the High Court was at Gauhati
816 The petition
was heard by a Bench consisting of the learned Chief Justice and Mr Justice Goswami
The learned Chief Justice seems to have held that Mr Justice Dutta while performing the duties of a Commission of Enquiry could not also perform the duties of a Judge of the High Court
He further held that in any case as the seat of the High Court was at Gauhati Mr Justice Dutta could not pass any order as a Judge of the High Court at Sibsagar which was not the seat of the High Court
Finally the learned Chief Justice made certain remarks as to the unholy haste and hurry exhibited in dealing with this matter by Dutta J at Sibsagar and set aside the order of stay granted by Dutta J on November 3 1966 and also set aside the order issuing rule nisi and dismissed the petition
Goswami J did not fully agree with the learned Chief Justice though he agreed with the order setting aside the stay granted  by Dutta J and also agreed with
the order dismissing the writ petition
He observed that I shall content  myself in assuming that Dutta J had no anxiety other than what prompted him to do in the interest of what his Lordship thought to be justice
when he passed the order in
question on November 3 1966
But he was of the view
that a Judge of the High Court could not hold a sitting anywhere in Assam except at the seat of the High Court namely Gauhati and therefore the order passed on November 3 1966 by Dutta J was without jurisdiction
The present appeal has been brought before us by special leave and it is urged on behalf of the appellant that it was not correct to hold that Dutta J could not act as a Judge of the High Court while he was working as a Commission of Enquiry and further that Dutta J had no jurisdiction while at Sibsagar to entertain the petition and to pass the stay order
We shall deal with the two contentions in that order
We are of opinion that the learned Chief Justice was not right when he held that Dutta J could not act as a Judge of the High Court While he was working as a Commission of Enquiry  Learned Attorney General appearing for the State of Assam did not support that view It also appears that Goswami J has said nothing on this aspect of the matter presumably he did riot agree with the view of the learned Chief justice
Often times Judges 6f High Courts are appointed under the Commission of Enquiry Act to head Commissions for various purposes
These Commissions are temporary affairs and many a time their sittings are not continuous
A Judge of the High Court when he is appointed to head a Commission of this kind does not demit his office as a Judge and when the Commission is not actually sitting he is entitled to sit as a Judge of the High Court
It is only where a Judge of the High Court is appointed to another post which is a whole time post that it may be said that on such appointment he can no longer work as a Judge of the High 817 Court for the time being though even in such a case when the work is over he reverts as a Judge of the High Court without fresh appointment
Such for example was the case of Incometax Investigation Commission where the appointments were whole time and a Judge
of the High Court appointed as a member of the Investigation Commission could not at the same time work as a Judge of the High Court
But Judges appointed to head Commissions under the Commission of Enquiry Act stand in a different position altogether
As we have said these
Commissions are temporary and are not whole time posts and their sittings are not even continuous
In such a case we are of opinion that a Judge appointed to  head a Commission of Enquiry remains as part of the High Court and if the Commission of Enquiry is not working continuously he is entitled to sit and act as a Judge of the High Court in the intervals
It is not disputed that Dutta J was heading a Commission of Enquiry of this temporary nature and as such we are of opinion that he was entitled to sit and act as a Judge of the High Court when ever he had time to do so
It is remarkable that Dutta J was appointed Vacation Judge while he was working as Commis sion of Enquiry and that appointment was in our opinion quite in order
for by heading the Commission of Enquiry Dutta J did not demit his office as a Judge of the High Court
We cannot therefore agree with the observation of the learned Chief Justice that Dutta J could not have assumed to himself the  role and duties of a Judge of the High Court exercising jurisdiction as a Bench of the High Court
We also disagree with the view expressed by the learned Chief Justice that it was highly objectionable on the part of Dutta J to work as a Judge of the High Court while be was heading the Commission of Enquiry
We are of opinion that where a Judge heads temporary Commissions of Enquiry under the Commission of Enquiry Act
he remains a part of the High Court and is entitled to sit and act as a Judge of the High Court whenever be thinks fit
The appointment of a Judge as Commission of Enquiry does not deprive him of the rights and privileges of a Judge of the High Court
Whenever he finds time to attend to his duties as a Judge of the High Court while acting as a Commission of Enquiry he can do so
The next question is whether Dutta J could act as a Judge of the High Court at Sibsagar when Gauhati is the seat of the High Court under the notification issued under article 10 of
the Assam High Court Order 1948
We do not think it necessary to decide this question in the present appeal
We shall assume that Dutta J could not pass orders as a Judge of the High Court anywhere else except at Gauhati which is the seat of the High Court
Even assuming that all that can be said is that the presentation of the writ petition before Dutta J at Sibsagar was irregular
As we have said already
he was still a Judge of the High Court while holding a Commission of Enquiry at Sibsagar 818 and if he received the petition at Sibsagar all that can be said is that the petition was irregularly presented there when it should have been presented at Gauhati
But assuming that the presentation of the petition at Sibsagar was irregular the fact remains that the petition was sent to Gauhati later and was dealt with there
We do not see why the petition should have been dismissed because the  presentation was irregular
There is in out opinion no difficulty in holding that the petition was repre sented when it was sent to Gauhati and was dealt with there in the High Court
The presentation should have been taken in such circumstances to have been made at Gauhati when the petition reached Gauhati and the petition should have been dealt with as such
Of course if the presentation of the petition at Sibsagar was irregular the order passed by Dutta J would also be irregular But when the petition came to the High Court thereafter the irregularity in presentation must be held to have been cured
It was open to the High Court to consider whether the irregular order of stay should be regularised
Apart from that even if the irregular stay could not be regularised there was no reason why the petition should have been dismissed merely on the ground that it was irregularly presented when it finally did reach the High Court at Gauhati
Whatever therefore may be said about the order under appeal setting aside the irregular order of stay we are of opinion that the High Court was not right in dismissing the petition as it did on May 24 1967
The petition must be held to have been represented to the High Court when it reached the seat of the High Court at Gauhati and should have been dealt with as such and could not have been thrown out merely on the ground that the original presentation on November 3 1966 was irregular
We are therefore of opinion that the order dismissing the petition must be set aside and the High Court should now go into the question whether the petition should be admitted and whether it should be set down for hearing
Finally we consider it our duty to refer to certain observations made by the learned Chief Justice with respect to Dutte Jis handling of the petition
In this connection reference was made by the learned Cheif Justice to a decision of this Court in Principal Patna College V K section Raman1
It is enough to say that the facts of that case are very different from the facts of the present case and the observations on which the learned Chief Justice relies do not apply to the facts of the present case
In the present case the petition was presented during vacation when no Judge was actually sitting at Gauhati and in the circumstances the action taken by the appellant in presenting the petition at Sibsagar before Dutta J who was the Vacation Judge and the only Judge available after giving notice to the Government Advocate on November 2 1966 at Gauhati seen to have been the only course open to him in the circumstances for the examination 1  819 was to be held from November 4 1966 and the appellant came to know on November 2 1966 when the examination fee was not accepted that he would not be able to sit at the examination
In the circumstances the observation of the learned Chief Justice that there was unholy haste and hurry exhibited in dealing with this  matter by Dutta J is entirely uncalled for
Assuming that Dutta J wrongly took the view that he could entertain the petition and pass the stay order at Sibsagar he could only act in the way he did in the view that he took and  it cannot be said that this was a case of unholy haste and hurry
We also cannot agree with learned Chief Justice that the notion of sending a copy to Gauhati for getting it sealed so that it might be properly authenticated was in any way objectionable
The situation being what it was that seems to us to be the only way open once it is clear that Dutta J took the view that he could entertain the petition and pass orders thereon even though that view may not be correct
Nor do we think that the learned Chief Justice was justified in observing that the whole thing discloses an unnecessary zeal on the part of Dutta J to assist the appellant
Once Dutta J took the view that he had jurisdiction to entertain the petition and pass orders thereon the order he passed and the steps he took so that the order was served before November 4 1966 which was the date of the examination appear to us to be the only steps that could have been taken and such steps cannot be said to be opposed to the great traditions that obtain in a High Court nor can it be said that Dutta J s action reflected adversely on the judicial independence and aloofness of that august institution
There is no reason to hold that any unnecessary zeal was shown by Dutta J in assisting the appellant when he passed the order which he did once Dutta J took the view that he had the jurisdiction to entertain the petition and pass order thereon at Sibsagar
All that happened thereafter appears to us to be quite proper and cannot in any way reflect on the conduct of Dutta J in this case
It is a matter of regret that the learned Chief Justice thought fit to make these remarks in his judgment against a colleague and assumed without any justification or basis that his colleague had acted improperly
Such observations even about Judges of subordinate courts with the clearest evidence of impropriety are uncalled for in a judgment
When made against a colleague they are even more open to objections We are glad that Goswami J did not associate himself with these remarks of the learned Chief Justice and was fair when he asaumed that Dutta J acted as he did in his anxiety to do what he thought was required in the interest of justice
We wish the learned Chief Justice had equally made the same assumption and had I not made these observations castigating Dutta J for they appear to us to be without any basis
It is necessary to emphasis that judicial decorum has to be maintained at all times and even where criticism is justified it must be in language of utmost restraint keeping always in view that the person making the comment is LPN78CI 13 820 also fallible
Remarks such as these made by the learned Chief Justice make a sorry reading and bring the High Court over which he presides into disrepute
Even when there is justification for criticism the language should be dignified and restrained
But in this case we do not see any justification at an for such remarks
We therefore allow the appeal and set aside the order of the High Court dismissing the writ petition and send it back to the High Court with the direction that the High Court should reconsider whether the petition should be admitted taking it as represented on the day it reached Gauhati and  if so it should be set down for hearing in due course
In the circumstances we make no order as to costs
VPS Appeal allowed


Summary:
One of the Judges of the High Court of Assam was nominated to be the Vacation Judge for hearing urgent civil and criminal applications when the High Court was closed for vacation from 17th September 1966 to 19th November 1966
Certain days were fixed as the vacation court days and if there was an extremely urgent matter the Vacation Judge could hear it on any other day by appointment
At that time the same Judge was heading a Commission of Enquiry under the Commission of Inquiry Act and in connection with that work on 2nd November 1966 the Vacation Judge went from Gauhati the seat of the High Court to Sibsagar
The appellant was a student of a college at Gauhati
He was expelled from the college on 26th October 1966
He tendered an
unconditional apology the next day and attended classes till the end of the month but on 2nd November when he wanted
to pay the fee for an examination to be held on 4th November the fee was not received as the Principal of the College had not accepted the apology
As the Vacation Judge was not available at Gauhati the appellant went to Sibsagar and presented a writ petition to the Vacation Judge
The Judge entertained the petition and passed an interim order
A copy of the interim order was prepared at Sibsagar and given to the appellant to be taken to Gauhati where it
was sealed and served on the University
The appellant was then allowed to sit for the examination subject to the result of the writ petition
Thereafter the papers relating to the writ petition were sent to the High Court at Gauhati and after the vacation was over certain miscellaneous orders were passed on the writ petition
Eventually it came up for hearing and was dismissed by a Bench consisting of the Chief Justice of the High Court and another Judge
The Chief Justice held that 1 the Vacation Judge while performing the duties of a Commission of Enquiry could not also Perform the duties of a Judge of the High Court 2 a Judge of the High Court could not hold asitting anywhere else except at the seat of the High Court  and 3 the Vacation Judge exhibited unholy haste and hurry  and his I action disclosed an unnecessary zeal  on his part to assist the appellant
The other Judge agreed with the order of dismissal only on the
second ground
In appeal to this Court HELD 1 Judges of the High Court are of appointed under the Commission of inquiry act to head commission for various head purposes
These Commissions are temporary affairs and usually their 814 sittings are not continuous
A Judge of the High Court when lie is appointed to head such a Commission does not demit his office as a Judge nor does the appointment deprive him of his rights and privileges as a Judge of the High Court
Therefore there was nothing objectionable on the part of the Vacation Judge working as a Judge of the High Court while he was heading the Commission for when the Commission was not actually sitting he was entitled to sit and act as a Judge of the High Court
817 G H 818 C
2 Assuming that a Judge of the High Court could not pass orders as a Judge anywhere else except at the seat of the High Court the effect of such an assumption in the present case is
that the presentation of the writ petition at Sibsagar was irregular and the interim order passed thereon was also irregular
But as the petition was sent to Gauhati later and dealt with by the High Court there the petition must be deemed to have been represented to the High Court and the irregularity in presentation must be held to have been cured
It was open to the High Court to consider whether the irregular interim order should be regularised or to deal with the petition on merits
But it was not open to the High Court to throw out the petition merely on the ground that the original presentation was irregular
818 H 819 A E
3 Assuming that the Vacation Judge wrongly took the view that he could entertain the petition and pass the interim order at Sibsagar he could only act in the way he did in the view that he took and in the circumstances the observations of the Chief Justice were entirely uncalled for
There was no justification at all for such justification for criticism the language should be dignified and rejustification for criticism the language should be dignified and restrained
820 B D G 821 A
Principal Patna College vs K section Raman 1966 1 SCR 974 distinguished