MC 3412/2008 BEFORE THE HON’BLE MR JUSTICE I.A. ANSARI Misc. Application No. 3412/2008 In WP(C) No. 4400/1999 (Disposed of) Whether a statement, made in or outside the Court by, or on behalf of ’X ’, that ’X’ has been discriminated against ’Y’, while appointing ’Y’ to a partic ular post in public employment, in preference to ’X’, on the ground that ’Y’ bel ongs to a particular religion, can be regarded as a communal statement ? This i s the moot question, which this Misc. Application has raised. 2. Connected with the above question is the question as to whether a Court shall make ’disparaging remarks’ against a counsel, if the counsel had made the statement, as indicated above, on the basis of written instructions received fro m his client, particularly, when the instructions are supported by affidavit of the client ? Yet another question, which has arisen for determination in this a pplication, is: Whether it is open to a Court to make ’disparaging remarks’ agai nst a counsel even if the counsel has withdrawn the submission or statement made by him ? 3. Before I come to the factual background, wherein the above questions hav e arisen for determination, imperative it is to point out, at the very outset, t hat this Court, while dealing with the present Misc. Application, is not sitting as a Court of appeal; rather, this Court has to treat the order, which has been the subject of the present Misc. Application, seeking expunction of the remarks made, in an order, against the counsel, as if the order was passed by this Cour t. 4. With the prefatory remarks made above, let me turn, now, to the backgrou nd facts. Background facts: 5. In order to understand the background of this present Misc. Application, the events, which preceded the making of the remarks against the present applic ant in the judgment and order, dated 09.11.2005, passed in WP(C) 4400/1999 [Sale ha Begum vs. State of Assam & Ors., reported in 2006 (1) GLT 86] are necessary t o be recalled. The relevant paragraphs of the judgment and order, dated 09.11.2 005, aforementioned are, therefore, extracted below: (1) The challenge made in this writ petition is in respect of termination of th e services of the petitioner as Assistant Teacher (honorary basis) by the Managi ng Committee of the school. (2) The petitioner was first appointed as assistant Teacher on honorary basis in the school in question by the Managing Committee of the school by its order dat ed 22. 1. 89 in response to the application submitted by the petitioner on 8. 1. 89. According to the petitioner she was the second senior most teacher of the s chool after one sri Anser Ali. Upon his resignation from the post of Headmaster of the school with effect from 26. 3. 98 accepted by the Managing Committee on 2 5. 5. 98, she was under expectation to be appointed as incharge headmistress of the school. However, contrary to such expectation, the Managing committee circul ated an advertisement on 12. 5. 98 confining the candidatures only to the male c andidates. According to the petitioner, same was done with a view to deprive her from the post of Headmistress. (3) In the aforesaid situation, the petitioner approached this Court by filing a writ petition being Civil Rule No. 28137 1998 and by interim order dated 10. 6. 98 the advertisement was stayed. Later on, the petitioner withdrew the writ pet ition on 11. 8. 99. In between, the Managing Committee of the school terminated her service by its resolution adopted on 27. 6. 98. It is the case of the petiti oner that the Managing Committee, being annoyed with her in view of her filing t he aforesaid writ petition, adopted such a course of action. (4) The petitioner filed the instant writ petition on 26. 8. 99 making a challen ge to the impugned order of termination, dated 27. 6. 98 i. e. after about 15 mo nths of such termination of service. In the writ petition, the petitioner has no t even obliquely stated about the subsequent developments that took place in res pect of the post earlier being held by her. While entertaining the writ petition , an interim order was passed directing the respondents to allow the petitioner to continue in her service. Such an order was passed on 29. 9. 99. Being aggriev ed, the Managing Committee of the school represented by the respondents No. 4 an d 5 filed Misc. Case No. 1184/1999 disclosing the developments that took place a fter termination of services of the petitioner. It was stated in the application that the post earlier being held by the petitioner had since been filled up fir stly by one Sri Himan Kumar Saikia and then by the respondent No. 7. It was cont ended that since the post had been filled up on 9. 9. 98 much before the interim order passed on 29. 9. 99, the order would put the management in difficulty sin ce there was no post to accommodate the petitioner. Be it stated here that the p ost in question is Assistant teacher in Assamese presently being held by the res pondent No. 7. (5) The interim order passed on 29. 9. 99 was vacated by order dated 24. 11. 99 taking note of the aforesaid facts and circumstances. The respondent no. 7 was n ot made a party to the writ proceeding, but later on as per order of this Court passed on 24. 11. 99, she was added as respondent no. 7 on the verbal prayer of the petitioner. Although, she stood impleaded in the writ proceeding, there is n o challenge to her appointment in this proceeding. In fact, no averments have be en made in respect of her selection and appointment. (6) The petitioner has not stated anything as to how the action of the Managing Committee of the school without any control over it of any governmental authorit ies could be amenable to writ jurisdiction. During the course of hearing of the writ petition, the question of maintainability of the writ petition was raised o n behalf of the respondents No. 4 and 5. Be it stated here that these two respon dents although have not filed any separate counter affidavit, but projected the aforesaid Misc. Case no. 1184/1999 to be their counter affidavit, the same havin g exhaustively dealt with the contentions raise in the writ petition. (7) Noticing the question of maintainability of the writ petition, this Court by order dated 23. 9. 99 directed the petitioner to file an affidavit as to the st atus of the school, whether it was a provincialised or an aided school. The peti tioner filed an additional affidavit enclosing therewith certain documents relat ing to permission for opening of classes, provisional recognition for only one s ection on each class and sanctioning of ad hoc grants to the school. Apart from annexing such documents, no statement has been made in the additional affidavit as to whether the school was a provincialised one or an aided one. On the other hand the respondents No. 4 and 5 in their Misc. Case has made the following stat ements in paragraphs 14 and 15: \14. That the school has the full strength of teacher permissible in respect of recognized school which is not receiving any grants from the government and such it would not be possible for the school’s Managing Committee to allow the writ petitioner to continue serving the school as she has been terminated from her se rvice on 27. 6. 98 and her post has been filled up long back. 15. That Barpathar High School is not a provincialised school or Government school and as such the action of the Managing Committee of the said school are not amenable to the wri t jurisdiction of this Hon’ble Court and as such the writ petition (c) No. 4400/ 99 filed by Mrs. Saleha Begum is liable to be dismissed on his ground alone and the interim order dated 29. 9. 99 is liable to be recalled as well. \ (Emphasis is a dded) 6. Since the observations made by the Court, in paragraph 8 of the above de cision, has given rise to the present Misc. Application, whereby the applicant, who was the counsel for the writ petitioner in WP(C) 4400/1999, has sought for e xpunction of the remarks made therein against him, the observations made by the learned Single Judge, in paragraph 8, are reproduced below: 8. Mr. M. U. Mahmud, learned counsel for the petitioner during the course of h earing made an unusual and unfortunate submission somewhat communalizing the iss ue contending that the petitioner has been discriminated she being Muslim and th at the respondent No. 7, has been preferred, she being Hindu. Another submissio n made was that the respondent No. 7 has been appointed mala fide and in coloura ble exercise of power by the respondent No. 4 and 5. On being asked as to wheth er any such allegations have been made in the writ petition including any challe nge to the appointment of the respondent No. 7, Mr. Mahmud, learned counsel for the petitioner, withdrew the submission so made and, in fact, expressed his regr et for making such a submission. He submitted that the action on the part of th e respondent No. 4 and 5 being violative of the principles of natural justice, s ame is not sustainable and consequently, the impugned order/resolution of the Ma naging Committee is liable to be set aside. (Emphasis is added ) 7. By making the present Misc. Application seeking expunction of the remark s of the Court, which were made against the present applicant to the effect that the applicant (who was the counsel for the writ petitioner in the said writ pet ition) had made a somewhat communal statement during the course of hearing of th e writ petition, the applicant has stated to the effect, inter alia, that though the matter was heard as far back as on 15.03.2005, and, then, on 28.07.2005, ye t the decision was given as late as on 09.11.2005, i.e., more than three months after the writ petition had been heard. The applicant contends that he was not aware of the remarks, which had been recorded by the learned Single Judge, in pa ragraph 8 of the decision, which came to be reported as Saleha Begum vs. State o f Assam & Ors., reported in 2006 (1) GLT 86, and it was long after the case had been reported that it came to his knowledge that the remarks, as indicated above , had been made against him. 8. The applicant has, therefore, sought for expunction of the remarks. The learned Single Judge, who had disposed of the writ petition and to whom was lai d this Misc. Application, which gave rise to Misc. Case No. 3412/2008, pointed o ut in his order, dated 21.03.2009, that the Application had been made belatedly, which has a copy of a letter, dated 30.03.2005, ’purportedly addressed to him b y the writ petitioner’. 9. In the order, dated 21.03.2009, the learned Single Judge has observed th at even if the letter of the writ petitioner, dated 30.03.2005, was taken on its face value, the contents of the letter, as stand recorded in paragraph 8 of the judgment, would not justify the communal statement made by the counsel (who is the present applicant) of the writ petitioner inasmuch as it was an attempt to b ring this Court to disrepute. 10. At any rate, having expressed the views, as indicated above, the learned Single Judge observed that having regard to the facts and circumstances of the case and in the interest of proper administration of justice, it was appropriate to lay the matter before Hon’ble the Chief Justice so as to place the matter be fore another appropriate Bench. The relevant observations made by the learned S ingle Judge, in his order, dated 23.01.2009, reads as under: Having regard to the facts and circumstances involved in the case and in the in terest of proper administration of justice, I deem it fit and proper to place th e matter together with the aforesaid statements of facts, before Hon’ble the Chi ef Justice for such directions towards placing the matter before another appropr iate Bench so that the matter comes to its logical conclusion upholding the maje sty, dignity and authority of law and the Court. 11. By the order of the Hon’ble the Chief Justice, the matter was laid, on 3 0.01.2009, before another learned Single Judge [Ranjan Gogoi, J, as His Lordship , then, was]. In order to ascertain the authenticity of the letter, dated 30.03 .2005, which the applicant had relied upon as the basis of his submissions, whic h stand recorded in paragraph 8 of Saleha Begum (Supra), the Court, by order, da ted 30.01.2009, directed Musstt. Saleha Begum to be brought to the Court, under police protection, making it clear that the Deputy Commissioner, Chirang, within whose jurisdiction Musstt. Saleha Begum resides, shall inform Musst. Saleha Beg um, that on her appearance, in the Court on 03.02.2009, at 10.15 a.m., she would be required to state as to whether she had written and signed the letter, dated 30.03.2005, and, if so, the materials on the basis of which the allegations, me ntioned in the said letter, had been made. 12. In course of time, Saleha Begum appeared in the Court and, to a query ma de by the Court [Ranjan Gogoi, J, as His Lordship, then, was], she stated before the Court that she had, indeed, written the letter, dated 30.03.2005, aforement ioned addressed to her counsel [i.e., the present applicant]. The Court, then, took specimen handwriting and signature of Musstt. Saleha Begum and sent the sam e to handwriting expert in the Forensic Laboratory along with the letter, dated 30.03.2005, for examination making it clear that the police, who had escorted Mu sstt. Saleha Begum to the Court, would take her back to her home and that the su pervision of the police personnel, as had been directed earlier, would continue until further order. 13. Thereafter, on 26.02.2009, another order was passed in this Misc. Applic ation, which shows that the Court perused the report of the senior Scientific Of ficer, Questioned Document Division, Directorate of Forensic Science, Government of Assam, and also perused the affidavit, dated 16.02.2009, filed by Musstt. Sa leha Begum pursuant to the Court’s order, dated 05.02.2009. In paragraph 6 of h er affidavit, Musstt. Saleha Begum stated, & &..In that letter, I wrote that Mrs . Maromi Medhi, who was appointed against my post, has some chain of links with the Judge/Lawyer in the Court related to the case with some positive expectation that she will win the case. 14. By an order, dated 03.09.2010, the Court directed the Registry to obtain necessary orders from the Hon’ble Chief Justice for assignment of the case to a ny appropriate Bench. Thereafter, the case has been made over to me for disposa l. 15. I have heard Mr. N. Dutta, learned Senior counsel, appearing on behalf o f the applicant. None has appeared on behalf of the State and/or the private re spondent. 16. In the face of the admitted position, that Saleha Begum had written the letter, dated 30.03.2005, aforementioned, to her counsel (i.e., the present appl icant) stating to the effect that Mrs. Maromi Medhi, who had been appointed agai nst her post, has some chain of links with the Judge/Lawyer in the Court related to the case with some positive expectation that she would win the case and, in the face also of the admitted position that the report of the handwriting expert confirms that the letter, in question, had been, indeed, written by Musstt. Sal eha Begum, let me, now, turn to what have been submitted on behalf of the applic ant. 17. Before proceeding further, it is wholly indispensable to point out that during the course of hearing of the present Misc. Application, it was pointed ou t by me to Mr. Dutta, learned counsel for the applicant, that it would, perhaps, be more appropriate, on my part, if I do not hear this Misc. Application and di rect the matter to be laid before the Hon’ble Chief Justice for necessary order to list the present Misc. Application before another Bench. What Mr. Dutta subm itted to the observations, so made by me, is, to my mind, extremely important no t only for this case, but for the justice delivery system, as a whole, inasmuch as we decide cases, in the Court of law, without being influenced by the caste, creed, religion, language or place of birth of a party or his/her counsel. 18. Reacting to the views expressed by this Court, that I should not, perhap s, take up this case, Mr. N. Dutta, learned Senior counsel, in his usual flair, drew the attention of this Court to the famous statement made by the renowned Ju rist, Prof. Jennings, to the effect that the day on which a lawyer, in England, would have the liberty to choose his client, that day would be the last day of t he rule of law and, taking this statement as a basis, Mr. Dutta, submits that it would be the death nail to the independence and majesty of the Indian judiciary if a Judge declines to take up a case merely because the decision given by the judge may be misunderstood. A Judge, according to Mr. Dutta, should not have th e choice of deciding as to which case it would hear and which case it would not unless the Judge is, directly or indirectly, interested or involved in the matte r. In the case at hand, since the situation is not that this Court is, in any m anner, directly or indirectly, connected with the matter or has any interest in the matter, Mr. Dutta contends, and I find considerable force in his contention, that it is appropriate, on the part of this Court, to deal with this case, no m atter as to what result would follow. Imbibed by the spirit, which the submissi on of Mr. Dutta generates, I have decided to take up the case, hear and decide t he same. 19. Appearing on behalf of the applicant, Mr. Dutta begins his arguments by pointing out that this Court is a Court of Record and, since this is a Court of Record, it must keep its records clean and clear and in such a manner that even if centuries hereafter, a research is conducted, the record of the case reveals that the Judges decided the disputes dispassionately and in accordance with law and refrained from doing what ought not to have been done, while dealing with th e judicial proceedings. Extending his argument, Mr. Dutta submits that one of t he precautions, which the Courts must take, is that it must not make any dispara ging or objectionable remarks or observations against any party or his counsel u nless such a remark or observation is absolutely indispensable for deciding the controversy raised before the Court. Mr. Dutta has referred, in this regard, to the case of Raghubir Saran vs. State of Bihar (AIR 1964 SC1). 20. Bearing in mind, therefore, the principles, which the Court must adhere to, namely, that no disparaging or objectionable remarks or observations shall b e made against a party or its counsel unless such remarks or observations are in dispensable for a just decision of the case, let me, now, revert to paragraph 8 of the decision, wherein some remarks were made against the present applicant, w hich the present applicant seeks to get expunged. The Court has recorded, at p aragraph 8, points out Mr. Dutta, that & &during the course of the hearing, the counsel made an unusual and unfortunate submission somewhat communalizing the is sue contending that the petitioner has been discriminated she being Muslim and t hat the respondent No. 7, has been preferred, she being Hindu. Another submissi on made, according to the learned Court, was that the respondent No. 7 has been appointed mala fide and in colourable exercise of power by the respondent No. 4 and 5. But, on being asked by the learned Single Judge as to whether such all egations had been made, in the writ petition, the counsel (i.e., the present app licant), had conceded that such allegation had neither been made in the writ pet ition nor had such a statement been made in the additional affidavit. The learn ed Single Judge has, however, recorded that the present applicant, as counsel, w ithdrew the submission made by him, namely, that the writ petitioner had been di scriminated against on the ground that she was a Muslim and respondent No. 7 was preferred on the ground that she was a Hindu. The learned Single Judge also re cords that, in fact, the present applicant, as counsel of the petitioner, expres sed his regret for his submission and the present applicant submitted to the Cou rt, in the writ petition, that the action of the respondent Nos. 4 and 5 being v iolative of the principles of natural justice, the same was not sustainable and, consequently, the impugned order and resolution of the Managing Committee were liable to be set aside and quashed. 21. It is the observation, made by the learned Court, that the present appli cant, as counsel of the petitioner, &made an unusual and unfortunate submission somewhat communalizing the issue contending that the petitioner has been discri minated she being Muslim and that the respondent No. 7, has been preferred, she being Hindu , which the present applicant seeks to get expunged by making the pr esent Misc. Application. 22. Referring to the provisions of Article 15 and 16 of the Constitution of India, Mr. Dutta points out that Article 15 prohibits the State from discriminat ing against any citizen on the ground of, amongst others, religion and, as far a s Article 16 is concerned, Article 16, while guaranteeing equality of opportunit y in matters of public employment, clarifies, vide sub-Clause (2) thereof, that no citizen shall, on the ground of religion, race, caste, sex, etc., be ineligib le for, or discriminated against, in respect of any employment or office under t he State. Taking together these two Articles, namely, Article 15 and Article 16 , Mr. Dutta submits that the Constitution has made it clear that the State canno t discriminate against a citizen on the ground of his/her religion, nor can the State make any discrimination, in the arena of public employment, on the ground of, amongst others, religion. 23. When, therefore, points out Mr. Dutta, a person, as a petitioner, or his counsel, makes a statement that he/she has been discriminated against on the gr ound of his/her religion, such a statement, being within the Constitutional Sche me of Governance, can never ever be recorded as a communal statement. It would be a dark day for democracy, in India, submits Mr. Dutta, if a person is estoppe d from ventilating his/her grievance if he/she happens to have been discriminate d against on the ground of religion. Whether such a statement, if made, is or is not true is an entirely different question. Continuing his argument, Mr. Dutta submits that the very secular fabric, which runs through the scheme of the Const itutional Governance, in India, gives a right to every citizen to make a public statement, or a statement in a Court, that he/she has been discriminated, on the ground of religion, in the matters of public employment or otherwise. Seen in this light, it becomes clear, submits Mr. Dutta, and I have no option but