IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Review No.119 of 2011 Order reserved on: 25.8.2011. Date of Decision: 26.8.2011 ________________________________________________________________ Sanjay Gupta … Petitioner Versus Sanjay Kumar and another … Respondents. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? No For the Petitioner (s) : Mr. Rajiv Jiwan, Advocate For the Respondents : None ________________________________________________________________ Deepak Gupta, J. 1. By means of this Review Petition, the petitioner Sh.Sanjay Gupta prays for that the judgment 3.8.2011 in which certain remarks have been passed against him be recalled/modified. 2. The petitioner Sh.Sanjay Gupta has prayed that the following observations made in the judgment dated 3.8.2011 be recalled and expunged: “9. Normally, this Court would not like to pass any comments on the action of judicial authorities, but here is a case of a Senior IAS Officer exercising judicial powers against whom earlier also strictures were passed by the then Hon'ble Chief Justice of this Court in case Amar Nath versus State of H. P. & 2 others, 2006(2) Shim. LC 343. This Court in that case was dealing with an order passed by Shri Sanjay Gupta, IAS in the capacity of Director, Consolidation of Holdings, Himachal Pradesh. The observations of the then Hon'ble Chief Justice read as follow: “The Director of Consolidation, therefore, either because of total ignorance of law on his part, or by misapplying specific and binding legal principles passed the aforesaid judgment dated17th December, 2002 which has wholly vitiated the proceedings against the petitioner. The petitioner's objections regarding the limitation aspect with respect to the appeal filed before the Additional Director (decided by him on 29th December, 2001) was erroneously dealt with by the Director.” The Court also directed that Copy of the judgment be sent to the Chief Secretary, Government of Himachal Pradesh for information and necessary action. It can be reasonably presumed that in compliance to the said directions the Chief Secretary must have at least informed Shri Sanjay Gupta about the orders of this Court. Instead of acting in a manner befitting a senior bureaucrat exercising judicial powers, his action in this case clearly shows that the earlier judgment had no impact on him and he continues to act like a feudal Maharaja not caring about the rule of law. His explanation that he passed the order without the knowledge of the earlier order shows that he while granting the stay order did not care to read the file. Further as observed above, even the stay order has been granted in total violation of the well known principles regarding the grant of stay orders. He has not given any finding that there is a prima facie case in favour of the appellant before him. He had not cared 3 to state the facts of the case. What was the irreparable harm and injury likely to be caused ? In whose favour he has found the balance of convenience ? Nothing is stated by him. These are the basic principles of law to be applied by all judicial authorities while granting the stay orders. He also violated the principles of natural justice by granting stay in the absence of the other side despite the fact that it was represented by counsel. Before passing any order he should have issued notice to the other side. 10. A Divisional Commissioner exercises wide ranging judicial powers on the revenue sides. I am of the considered opinion that litigants cannot be asked to appear before such an officer who has little knowledge of law and who despite earlier warning given has not cared to improve. The earlier judgment of this Court appears to have had no impact upon Shri Sanjay Gupta. Therefore, I am of the considered view that he should be divested of all the judicial powers. Shri Sanjay Gupta, in view of the earlier order and this order cannot be expected to work as an efficient judicial officer. He should be divested of all judicial powers. Therefore, the state is directed to ensure that some other competent official is posted in his place as Divisional Commissioner Kangra at Dharamshala within four weeks from today.” 3. The Review Petitioner, Sh.Sanjay Gupta was the Divisional Commissioner who passed the order which was under challenge in CMPMO No.206 of 2011. This Court before making the aforesaid observations had issued notice to the Divisional Commissioner, Kangra i.e. 4 the present petitioner to file his personal affidavit to explain why when parties were represented by counsel he decided the application in the absence of the other side. The relevant portion of the order dated 15.6.2011 reads as follows: “The Divisional Commissioner, Kangra took up the case on 6.5.2011 and decided the matter without issuing any notice to the present petitioner or his counsel. He not only transferred the case to Dharamshala but also granted an ad interim stay without realizing that his predecessor after hearing both the parties had rejected the stay application which order had admittedly become final. All officials exercising judicial or quasi judicial powers must be aware of the basis principles of law and the principles of natural justice. If any order was to be passed in a case where other side was represented by a counsel, I am of the prima facie view that such an order could have been passed only after giving notice to the counsel. If this practice is not followed, it will lead to anarchy in the judicial system where day in and day out, orders would be changed at the asking of one party or the other. Therefore, I am of the prima facie view that the impugned order is required to be stayed. Notice is issued to the Divisional Commissioner, Kangra who shall file his personal affidavit on or before the next date and explain why, when parties were represented by counsel, he decided the application in the absence of the other part. Further 5 proceedings before the Divisional Commissioner, Kangra are stayed.” 4. The petitioner filed his affidavit in response to the aforesaid order and according to him he came to know about the fact that the stay order had been declined on 9.7.2008 only when he received copy of the order dated 15.6.2011 passed by this Court. He gave no explanation as to why interim order was granted without issuing notice to the other side in a matter which had been pending in the Court of the Divisional Commissioner for more than 3 years and the other side was represented by counsel. 5. In the affidavit filed in response to the directions of this Court no remorse was expressed by the petitioner and he gave no explanation as to why he passed the stay order without even giving the details of the facts of the case. 6. It is not disputed before me that the petitioner has committed a mistake. He admits that he passed the stay order without issuing notice to the other side and without even ascertaining whether his predecessor had rejected the stay application or not. 7. Sh.Rajiv Jiwan, learned counsel for the petitioner has cited following judgments before me in support of his 6 contention that superior courts should be extremely reluctant to pass strictures and should exercise judicial restraint while commenting on the work of the Judges: i) Braj Kishore Thakur vs. Union of India and others, AIR 1997 SC 1157; ii) V.K. Jain vs. High Court of Delhi through Registrar General and others, (2008) 17 SCC 538; and iii) Sidhartha Vashisht alias Manu Sharma vs. State (NCT of Delhi). 8. There can be no quarrel with the proposition of law. A Judge is a human being and to err is human. Any person can make a mistake but, in the present case, this is not the first but the second occasion when the Court has been constrained to comment upon the working of the petitioner. 9. It is not necessary to cite all the judgments since the entire law has been succinctly culled out in para 58 of the judgment in V.K. Jain’s case (supra) after considering all the earlier authorities on the point. Para 58 reads as follows: “50. When we examine the facts of the instant case in the light of the judicial decisions spreading over a century, the following principles of law can be culled out: (I) Erosion of credibility of judiciary in the public mind, for whatever reason, is the greatest threat to the independence of judiciary. (II) Judicial discipline and restraint are imperative for the orderly administration of justice. 7 (III) Judicial decorum makes it imperative that the Court's judgments and orders must be confined to the facts and the legal position involved in the cases and the Courts should not deviate from propriety, moderation and sobriety. (IV) Majesty of Court is not displayed solely in cracking the whip on mistakes, inadvertent errors or lapses, but by persuasive reasoning so that the similar errors and mistakes are not repeated by the judicial officers. (V) Majesty of Court would be enhanced by practicing discipline and self-restraint in discharging of all judicial functions. All actions of a Judge must be judicious in character. (VI) The role of superior Courts is like a friend, philosopher and guide of the judiciary subordinate to it. The judicial officers have to be treated with parental care and affection. (VII) The approach of the superior Courts ought to be correctional and not to be intended to harm or ruining the judicial career of the officers. (VIII) The superior Courts should always bear in mind that the judicial officer is not before it and should ordinarily refrain from passing strictures, derogatory remarks and scathing criticism. The passing of such order without affording a hearing to the judicial officer is clearly violative of the principles of natural justice. (IX) The superior Courts should always keep in mind that disparaging and derogatory remarks against the judicial officer would cause incalculable harm of a permanent character having the potentiality of spoiling the judicial career of the concerned officer. Even if those remarks are expunged, it would not completely restitute and restore the harmed Judge from the loss of dignity and honour suffered by him. (X) The superior Courts should convey its messages to the concerned judicial officers through a process of reasoning highlighting the correct provisions of law, precedents and proper analysis of evidence and material on record, but rarely by passing harsh and derogatory remarks. (XI) The superior Courts must always keep in mind that it is a herculean task for the judicial officer to get the derogatory remarks expunged by the superior Court. He is compelled to take assistance from lawyers and such a practitioner may be appearing before him. It is embarrassing, humiliating, time consuming and an expensive exercise. (XII) The superior Courts must always keep in mind that the much cherished judicial independence must not be presented only from outside but from within, by those who form the integral part of the judicial system. Damage from within has much larger and greater potential for harm than danger from outside. We alone in judicial family can take care of it. (XIII) The superior Courts should not use strong, derogatory, disparaging and carping language while criticizing the judicial officers. They must always keep in mind that, like all other human beings, the judicial officers are also not infallible. Any 8 remarks passed against them may result in incalculable harm resulting in grave injustice. (XIV) The superior Courts Judges should not be, like a loose cannon, ready to inflict indiscriminate damages whenever they function in judicial capacity. (XV) The superior Courts should keep in mind that infliction of uncalled for, unmerited and undeserved remarks clearly amount to abuse of the process of Court. (XVI) The superior Courts should not allow themselves even momentarily the latitude of ignoring judicial precaution and propriety. (XVII) It must be remembered that the subordinate judicial officers at times work under charged atmosphere and are constantly under psychological pressure with all the contestants and their lawyers almost breathing down their necks and more correctly upto their nostrils. (XVIII) Err is human and no one is infallible. A Judge who has not committed an error is yet to be born. Judicial decorum has to be maintained at all times and even where criticism is justified. It must be in a language of utmost restraint always keeping in view that the person making the comment is also fallible. (XIX) Judges of the superior Courts have a duty and obligation to ensure judicial discipline and respect for judiciary from all concerned. The respect for the judiciary is not enhanced when Judges at the lower level are criticized intemperately and castigated publicly. Our legal system acknowledges the fallibility of the Judges and provides for appeals and revision. (XX) It is the duty and obligation of the Judges of the superior Courts to ensure that independence of judiciary is not compromised and every judicial officer should feel that he can freely and fearlessly give expression to his own opinion. This is absolutely imperative in maintaining the independence of judiciary. (XXI) The superior Courts' Judges must always bear in mind that no greater damage can be caused to the administration of justice and to the confidence of people when Judges at superior Courts express lack of faith either in ability or integrity of subordinate Judges.” 10. This petition is being considered by applying the aforesaid principles. 11. Coming to the present case, first of all it may be noted that the observations made by this Court were made after issuing notice to the present petitioner. In the first 9 part of para 9, it has been noted that earlier also strictures were passed against the petitioner in the case reported as Amar Nath vs. State of H.P. and others, 2006 (2) Shim.LC 343. In my view, the observations were very germane to the issue. The petitioner does not deny that the observations made by Hon’ble the Chief Justice in Amar Nath’s case (Supra) were conveyed to him. The only observations in para 9 of the judgment which can be said to be against the petitioner are the following: “Instead of acting in a manner befitting a senior bureaucrat exercising judicial powers, his action in this case clearly shows that the earlier judgment had no impact on him and he continues to act like a feudal Maharaja not caring about the rule of law.” The rest of the observations made in para 9 were essential for the decision of the case and do not need to be recalled. 12. While coming to para 10, in view of the manner in which the Review Petitioner had conducted the matter, this Court had felt that the petitioner should be divested of all judicial powers and consequently directions were given to the State to divest Sh.Sanjay Gupta of the work of Divisional Commissioner. 10 13. In the Review Petition, Sh.Sanjay Gupta has assured and undertaken to this court that in case the remarks are recalled he will take utmost care and caution to adhere to the provisions of law and the settled procedure in future. It would have been better if Sh.Sanjay Gupta had expressed remorse when asked to give his explanation by this Court. Be that as it may, the superior courts must be magnanimous while accepting the apologies and explanations of the subordinate judicial authorities and Tribunals. 14. Sh.Rajiv Jiwan, has made an impassioned plea that in case the petitioner is removed from the post of Divisional Commissioner he will suffer throughout his career and even the career of his daughter who is studying in class 10th at Dharamshala would be affected in case the petitioner is transferred at this stage. The petitioner who is present in person has also expressed his remorse. 15. Keeping in view the remorse expressed by the petitioner and his undertaking given to this Court and the fact that the future of his child is involved, the observations made in para 10 are modified and now para 10 shall read as follows: 11 “A Divisional Commissioner exercises wide ranging judicial powers on the revenue sides. I am of the considered opinion that litigants have the right to demand that the officers who decide their cases, in fact their destinies, must be competent officers. Sh.Sanjay Gupta did not improve despite the earlier warning given to him in Amar Nath’s case (supra). He however has expressed remorse and undertaken that in future he will ensure that the legal provisions are followed. Keeping in view the undertaking of Sh.Sanjay Gupta, I am of the view that he may be given one more chance to improve himself. It is however made clear that in case any other case comes to the notice of this Court wherein he acts in such a fashion or does not follow the procedure prescribed by law this court will not hesitate in reiterating its directions given earlier that he should be divested of his judicial powers.” 16. Consequently, paras 9 and 10 of the judgment shall now read as follows: “9. Normally, this Court would not like to pass any comments on the action of judicial authorities, but here is a case of a Senior IAS Officer exercising judicial powers against whom earlier also strictures were passed by the then Hon'ble Chief Justice of this Court in case Amar Nath versus State of H. P. & others, 12 2006(2) Shim. LC 343. This Court in that case was dealing with an order passed by Shri Sanjay Gupta, IAS in the capacity of Director, Consolidation of Holdings, Himachal Pradesh. The observations of the then Hon'ble Chief Justice read as follow: “The Director of Consolidation, therefore, either because of total ignorance of law on his part, or by misapplying specific and binding legal principles passed the aforesaid judgment dated17th December, 2002 which has wholly vitiated the proceedings against the petitioner. The petitioner's objections regarding the limitation aspect with respect to the appeal filed before the Additional Director (decided by him on 29th December, 2001) was erroneously dealt with by the Director.” The Court also directed that Copy of the judgment be sent to the Chief Secretary, Government of Himachal Pradesh for information and necessary action. It can be reasonably presumed that in compliance to the said directions the Chief Secretary must have at least informed Shri Sanjay Gupta about the orders of this Court. His explanation that he passed the order without the knowledge of the earlier order shows that he while granting the stay order did not care to read the file. Further as observed above, even the stay order has been granted in total violation of the well known principles regarding the grant of stay orders. He has not 13 given any finding that there is a prima facie case in favour of the appellant before him. He had not cared to state the facts of the case. What was the irreparable harm and injury likely to be caused ? In whose favour he has found the balance of convenience ? Nothing is stated by him. These are the basic principles of law to be applied by all judicial authorities while granting the stay orders. He also violated the principles of natural justice by granting stay in the absence of the other side despite the fact that it was represented by counsel. Before passing any order he should have issued notice to the other side. 10. A Divisional Commissioner exercises wide ranging judicial powers on the revenue sides. I am of the considered opinion that litigants have the right to demand that the officers who decide their cases, in fact their destinies, must be competent officers. Sh.Sanjay Gupta did not improve despite the earlier warning given to him in Amar Nath’s case (supra). He however has expressed remorse and undertaken that in future he will ensure that the legal provisions are followed. Keeping in view the undertaking of Sh.Sanjay Gupta, I am of the view that he may be given one more chance to improve himself. It is however made clear that in case any other case 14 comes to the notice of this Court wherein he acts in such a fashion or does not follow the procedure prescribed by law this court will not hesitate in reiterating its directions given earlier that he should be divested of his judicial powers.” 17. Consequently, this petition is allowed, the judgment dated 3.8.2011 passed in CMPMO No.206 of 2011 is recalled and paras 9 and 10 deemed to have been replaced as above. No costs. August 26, 2011 ( Deepak Gupta ),J. PV