CJ Order under Art. 225: Jyoti Prokash Mitter vs H.K. Bose, Chief Justice Of The … on 3 January, 1962

Calcutta High Court
Jyoti Prokash Mitter vs H.K. Bose, Chief Justice Of The … on 3 January, 1962
Equivalent citations: AIR 1963 Cal 178, 66 CWN 211
Author: B Banerjee
Bench: B Banerjee

ORDER

B.N. Banerjee, J.

1. The petitioner was appointed an Additional Judge of this Court on February 11, 1949. He was made permanent on January 23, 1950.

2. Under Section 220 of the Government of India Act, 1935 and its corresponding article in the Constitution, Article 217 the petitioner was to bold office until he attained the age of 60 years.

3. According to the petitioner he was born on December 27, 1904 and the age that he gave out, at the time of his appointment as a Judge, was based on the aforementioned date. The petitioner, therefore, takes the stand that he is not required to demit his office earlier than December 27, 1964.

4. In April 1959, after the petitioner had been in office for upwards ten years, the Home Minister, Government of India, tried to reopen the question of the petitioner’s age, on the ground that there was a disconformity between the petitioner’s age as declared and his Matriculation age, as appearing in the Bihar and Orissa Gazette. I need not concern myself, in this petition, with the attempts made by the petitioner to dissuade the persons or authorities concerned either from reopening his age of from proceeding on the basis of his age, as appearing in the Bihar and Orissa Gazette (that is to say, his Matriculation age). Ultimately, however, the Secretary, Ministry of Home Affairs wrote a letter, dated May 16, 1961, to the petitioner the material portion of which is set out below :

“It was brought to the notice of the Government of India that your age at the time of passing the Matriculation examination of the Patna University held in April, 1918, was 16 years and 3 months, according to the entry against your name in the results of that examination published in the Bihar and Orissa Gazette, dated the 26th June, 1918. The Government of India have also received information that your date of birth was recorded as 27th December, 1901, when yon sat at the open, competitive examination in July-August, 1923, held by the U. K. Civil Service Commission for appointment to the Indian Civil Service. This date viz., 27th December, 1901, tallies with the entry regarding your age at the time of your passing the Matriculation examination appearing in the Bihar and Orissa Gazette referred to above. In the statement of particulars furnished by you in the year 1956, you have given your date of birth as 27th December, 1904. There was thus a discrepancy between tile two dates. You were asked through the Chief Justice of the Calcutta High Court, to explain this discrepancy.

The Government of India, having given their most careful consideration to the explanation given by you, have decided, in consultation with the Chief Justice of India, that your age as given in the Bihar and Orissa Gazette dated the 26th June, 1918, should be taken as the correct age and that the date of birth viz. 27th December, 1901, as recorded at the time yon appeared at the I. C S. competitive examination, London, which tallies with the entry in the said Gazette regarding your age, should be taken as the correct date of birth. You should, therefore, demit your office of puisne Judge of the Calcutta High Court on the 26th December, 1961, after Court boors.”

5. The petitioner disliked the suggestion contained in the letter and took up the matter with the Chief Justice of India. He received the following reply from the Chief Justice of India, dated August 22, 1961 :

“* * * Yes, I confirm what I told you in the course of the talk I had with yon a few weeks ago that it was decided that yon should retire sometime in December next on your superannuation, according to your age in the matriculation certificate, without going into the correctness of the age given by a Judge according to this horoscope or other documents. That was in consonance with the policy adopted by the Government of India in recent cases. Neither the Government of India, nor anybody, far less the Supreme Court, would do anything to detract from the prestige of a High Court which must depend upon the respect in which the Judges of the Court are held by all concerned. Certainly we would not do anything to cast aspersions on the veracity of a Judge of a High Court; but in order to save the Judge him self and the Government from any embarrassment in Court and out of Court this policy has been adopted. In pursuance of this policy, I understand, all those who have been appointed as High Court Judges in recent years have been asked to submit their matriculation certificates or any other evidence of age, as it appears in the University records.

I am glad to know that you have taken my assurance in the spirit in which it was given, namely, to save you and to save the Government from any embarrassment in connection with such a controversy.”

The assurance, contained in the letter from the Chief Justice, did not assuage the petitioner and be further corresponded with the Ministry of Home Affairs disputing the constitutionality of the decision. Failing to make the Ministry change its view, he moved an application, under Article 226 of the Constitution, before a Circuit Bench, of the Punjab High Court at Delhi, praying, inter alia, for a writ in the nature of mandamus and for appropriate directions and orders directing the Union of India not to give effect to the purported decision or direction contained in the Home Secretary’s letter, dated May 16, 1961 and not to interfere with the discharge of the duties and functions as well as with the enjoyment of the rights and privileges of the petitioner as a Judge of the High Court, until December 27, 1964 (namely, the date of superannuation according to the petitioner’s own version). He obtained a rule.

5. The Punjab High Court by its judgment, stated December 4, 1961, dismissed the petition on several grounds, inter alia, as hereinbelow quoted:

“(a) The question is not what age has been given by the Judge or what age has been erroneously or through a misapprehension accepted, but what is his actual age. This, as I have already observed, must be determined not according to any preconceived policy or any predetermined standards but in the ordinary way and according to rules of evidence. When the age is determined in this manner, then the Judge is obliged to retire on attaining the age of 60. The reopening of the question of age is certainly not an incursion into the rights of the judiciary, nor is it calculated to endanger its independence, provided, of course, the enquiry is made according to law and according to the rules of evidence.

(b) The petitioner was finally forced to admit that, an objective enquiry into a Judge’s correct age could be made at all times and that no right-thinking person could have any objection to his correct age being determined even though there had been no demur to the age given by him on a previous occasion. The main objection of the petitioner is not to the factum of the enquiry but to the manner in which it was conducted.

(c) His contention is that the enquiry was made entirely behind his back and he was not given an opportunity of rebutting the material upon which the Home Minister passed his final decision. Now, this argument is not found to have much force when we come to examine it. I have already referred to a letter which the Chief justice of Calcutta High Court wrote to the petitioner on receiving a copy of the Home Minister’s letter. In this letter the Chief Justice asked the petitioner to give him a full statement on all points involved and also to send bun any material which he may consider relevant for the correct ascertainment of his date of birth. Thus, as early as the 17th of April, 1959, the petitioner was provided with an opportunity to represent his case. He was told on that occasion that the evidence against him consisted of the entries in the Bihar and Orissa Gazette. Shortly afterwards he was informed of the second piece of evidence upon which the Home Ministry was proposing to act, namely, the records of the Civil Service Commission in London. For more than two years the matter remained under consideration and several letters were exchanged between the petitioner on the one hand and the Chief Justice of Calcutta, the Chief Justice of India and the Home Secretary on the other. The petitioner on no occasion produced any material which would go to rebut the evidence of the Gazette or the report of the Civil Service Commission. Along with the petition he has filed two documents, one of which purports to be his horoscope and the other an entry made by a relative in an almanac. These two documents were never mentioned by him in his correspondence and they certainly were not produced before anyone. If reference was made by the petitioner in his oral conversation with anyone, no record of such conversation was kept, and it seems to me, that this evidence has been produced now for the first time. The petitioner’s attitude throughout has been that the matter cannot be reopened at all, because the age which he had given in 1949 just before his appointment as Judge was accepted, and this acceptance cannot now be questioned and since he took op this position throughout, he did not consider it necessary to produce or even to refer to any evidence which had been in his possession when such evidence might have disapproved the correctness of the matriculation age. In the circumstances, the determination of his age had perforce to be made upon the material which was available with the Home Ministry, and this consisted of two previous statements made by or on behalf of the petitioner. The petitioner has now sought to explain away these previous admissions or statements in a somewhat naive manner. He does not admit that it was be who gave his age at the time of matriculation. He also says that it was not he who mentioned his age at the time he sat the Indian Civil Service Examination. The age was mentioned in a certificate sent to him from India by some relative. The petitioner did not choose to disclose even the name of the relative. It is impossible to believe that the petitioner was ignorant of these facts or that he allowed a false statement of age to be given without being a party to it. At the time he sat the Indian Civil Service Examination in London, he was, according to himself 18 years of age and according to the age he then stated he was 21. In either case he must be fully conscious of what he was doing. He knew that he could not sit the examination unless he was over the age of 21 and, therefore, at that time according to his own showing he misrepresented his age in order to sit the examination. He had done the same thing previously when at the age of 13 (according to him) he had sat the Matriculation Examination. In his letter to the Chief Justice he bad professed ignorance of what he had done when he sent his application to the Civil Service Commission. I do not think that it is possible to forget such an important event. Also I find it difficult to believe that be revealed all the facts to Sir Trevor Harries in 1949. The fact that he mentions Sir Trevor Harries name for the first time only after his death is somewhat significant and I have grave doubts about the veracity of the petitioner’s statement before us in this respect.

(d) There is, however, another aspect of the matter also. No order removing the petitioner from his post has been made. He has merely been informed that his date of birth will be taken to be 27-12-1901; on this basis the petitioner ought to retire. He has, therefore, been asked to retire. The petitioner can, if he chooses, disregard this direction on the ground that he is not bound to accept a suggestion made by the Home Ministry and the only manner in which he can be made to leave his office is by means of an order passed after an address by each House of Parliament as laid down in proviso (b) to Article 217(i) of the Constitution, and if that be so, then he need not seek any relief from this Court and there is no occasion for issuing a mandamus directing the Union of India not to give effect to its decision.

(e) I am also convinced upon all the material which has been produced before us, including the horoscope and the entry in the almanac, that the Home Ministry was not wrong in accepting the correct age as that given in the Bihar and Orissa Gazette and in the certificate which the petitioner had filed with his application when he sat the Indian Civil Service Examination.”

The Punjab High Court refused to give leave to the petitioner to appeal to the Supreme Court against the order. The petitioner, thereupon, applied for special leave before the Supreme Court but his application was rejected.

7-8. December 22, 1961 was the last working day of this Court before the Christmas Vacation. On that date the petitioner wrote the following letter to the Chief Justice of this Court :

“* * * I do not know if you have had any further communication from the Ministry of Home Affairs as to the question of my superannuation. At the hearing of my writ petition before the Punjab High Court, the Union of India (through its Solicitor-General) conceded that its purported decision as to my age was a mere opinion and that its purported direction was a mere suggestion and was in any event unenforceable. The High Court also held as follows :

‘There is, however, another aspect of the matter also. No order removing the petitioner from his post has been made. He has merely been informed that his date of birth will be taken to be 27-12-1901: on this basis the petitioner ought to retire. He has, therefore, been asked to retire, The petitioner can, if he chose, disregard this direction on the ground that he is not bound to accept a suggestion made by the Home Ministry and the only manner in which he can be made to leave his office is by means of an order passed after an address by each House of Parliament as laid down in proviso (b) to Article 217(1) of the Constitution and if that be so, then he need not seek any relief from this Court and there is no occasion for issuing a mandamus directing the Union of India not to give effect to its decision.

* * *

In any event, I propose to continue in office after the 26th and I have no doubt that you will not only not be a party to any interference with my duties and functions as well as with my rights and privileges as a Judge of this Court but also that you will afford me the protection which a Judge is entitled to expect from bis Chief Justice.

* * * ”

He did not receive any reply to that letter. During the Christmas Vacation, the petitioner wrote another letter, dated December 31st, 1961, to the Chief Justice of this Court to the following effect:

“I have had no answer to my letter to you of 22nd December, 1961. Meanwhile, by direction given to my Court Officer on the same day to have two cases placed in my list for judgment on 2nd January, 1962, has not been carried out owing, as I understand, to a subsequent order by you not to print or publish any Cause List for me for the and January, 1962. I also understand that under your order my orderlies were withdrawn from their duties with effect from 27th December.

In these circumstances, I must respectfully protest against what I consider to be an unjust interference on your part with my duties and functions as well as with my rights and privileges as a Judge of the High Court and must demand that justice be done to me by recalling forthwith your said orders and/or directions and by affording me all such facilities as are necessary to enable me to carry out my duties and functions as a Judge. * * * ”

9. The petitioner now alleges, (a) that the Chief Justice of this Court directed that no cause list for the petitioner should be printed, or published for January 2, 1962, namely, the date on which this Court was to reopen after the Christmas Vacation (paragraph 50 of the petition), (b) that the petitioner’s orderlies were also withdrawn from their duties, with effect from December 27, 1961 (paragraph 50 of the petition), and (c) that by doing all that the Chief Justice of this Court pup-ported to give effect to the decision of the Government of India as to the date of bis superannuation, contained in the Home Secretary’s letter dated May 16, 1961 (paragraph 46 of the petition).

10. The petitioner contends that he cannot be removed from office except in the manner laid down in proviso (b) to Article 217(1) read with Clause (4) of Article 124 of the Constitution and that the Chief Justice of this Court has no jurisdiction, either on the strength of the letter from the Ministry of Home Affairs, dated May 16, 1961, or on the basis of the judgment of the Punjab High Court, to regard the petitioner as having demitted his office or to deny to him his constitutional right to continue to hold office as a Judge of this Court.

11. The petitioner appeared in person to move the application.

12. Regard being had to the provisions of Article 220 of the Constitution, I felt pome initial doubt aa to whether the petitioner, who after the commencement of the Constitution held office aa a permanent Judge of this Court, should be allowed personally to plead before this Court. Article 220 of the Constitution is set out below :

“(Article 220). No person who, after the commencement of this Constitution has held office as a permanent Judge of a High Court shall plead or act in any Court or before any authority in India except the Supreme Court and the other High Courts. Explanation– X X X”

13. I am, however, convinced that the restriction is on practice after being a permanent Judge. According to the Oxford English Dictionary the expression “plead” means, amongst other meanings, “to address the Court as an Advocate on behalf of either party”. In my opinion, that is the sense in which the expression ‘plead’ has been used in Article 220. In this view I am also fortified by the marginal note to the Article, which reads as, “Restriction on practice after being a permanent Judge”. That marginal note was in the Constitution Seventh Amendment Bill, which was passed by the Parliament, is a part of the Constitution and it is permissible to look to it for the clue to the meaning of the word “plead” as used in the body of the article (See Bengal Immunity Co. Ltd. v. State of Bihar ). The petitioner is not pleading as an Advocate for a party. He intends to plead his own cause. In my opinion he may do so. I have, therefore, decided to hear him.

14. I turn now to the grievances pleaded by the petitioner. The law is clear that a Judge is to retire on attaining the age of 60 years. The question of the petitioner’s age is an intriguing one, because his declared age does not conform to bis age as appearing in the Bihar and Orissa Gazette, which published his matriculation age, nor does it conform to the age the petitioner himself gave at the time when he sat for the competitive examination held by the United Kingdom Civil Service Commission in 1923. For the purpose of ascertaining the date of retirement of the petitioner, the intriguing problem had to be resolved. The Ministry of Home Affairs made one solution of the problem by deciding to rely on the age at the time of the petitioner’s matriculation examination, as appearing in the Bihar and Orissa Gazette, and conveyed that decision to the Chief Justice of this Court. The petitioner challenged the decision of the Government of India, by way of a writ petition, before the Punjab High Court and courted a decision. The Punjab High Court dismissed the petitioner’s application, inter alia, on the ground that the Home Ministry was not wrong in accepting the correct age of the petitioner as that given in the Bihar and Orissa Gazette, (meaning his age at the time of the Matriculation Examination) and the certificate which the petitioner filed with his application when he sat for the Civil Service Examination. The petitioner moved for special leave before the Supreme Court against the dismissal of his writ petition but failed even there. Now, the petitioner wants the Chief Justice of this Court to disregard the decision of the Ministry of Home Affairs as to his superannuation and to accept the petitioner’s own version about his age and to treat him as a sitting Judge, who has not yet attained the age of 60 years.

15. In my opinion nothing compels the Chief Justice to accept the age of the petitioner according to the petitioner’s own version in preference to the decision by the Ministry of Home Affairs as I to the age of the petitioner.

16. The petitioner strongly contended that the Ministry of Home Affairs arrived at a capricious decision about the petitioner’s age and that decision should be disregarded. I am not convinced by the argument. The Ministry of Home Affairs proceeded on the basis of certain documentary evidence about the petitioner’s age, namely, his matriculation age as appearing in the Bihar and Orissa Gazette and the date of birth caused to be recorded by the petitioner himself at the time when he sat for the examination held by the United Kingdom Civil Service Commission. That is not acting capriciously but acting on evidence as to age — although it may be, as the petitioner urges, that those two documents also did not give the correct age of the petitioner and by relying on those documents the Ministry of Home Affairs did not arrive at the correct conclusion. I need not, however, further concern myself with this argument because this application is not directed against the Ministry of Home Affairs and the correctness or otherwise of the decision by that Ministry is not the subject matter of this application. I have referred to the argument merely because the petitioner emphasised on the alleged capriciousness of the decision and I have expressed my evaluation of the argument.

17. Turning again to the grievances made by the petitioner, I find that they are wholly misconceived. The Chief Justice of this Court did not decide the date of retirement of the petitioner. The Government of India did. According to that decision, the petitioner was to demit the office of a puisne Judge on December 26, 1961, after the Court hours. That decision was communicated to the Chief Justice of this Court and he has merelv taken note of that. Petitioner’s challenge to that decision before the Punjab High Court has also failed. To ask the Chief Justice now to disregard the decision of the Government of India and to treat the petitioner as still holding the office is to ask him to arrive at a decision which he cannot make and has no duty to make. It was the business of the Ministry of Home Affairs, Government of India to arrive at an administrative decision (in the sense of keeping an administrative record) about the date of petitioner’s superannuation. That it has done. Whether it decided the matter correctly or not is not for me to say in this application, for reasons already stated. The Chief Justice of this Court has merely taken note of that decision or recording. That was the only thing he could do in the circumstances of this case.

18. The petitioner strenuously urged that the Chief Justice of this Court was not bound to take notice of the decision of the Ministry of Home Affairs and should have continued to allocate judicial work to him and maintained the other facilities of his office. He relied on Section 14 of the Act establishing High Court (24 and 25 Vict. Cap. 104), Section 108(2) of the Government of India Act, 1915, Section 223 of the Government of India Act, 1935 and Article 225 of the Constitution and contended that it was the duty of the Chief Justice to determine what Judge was to sit alone and what Judges were to constitute the Division Courts and in discharging that duty the Chief Justice could not ignore the petitioner and fail to allocate judicial work to him. This argument is not very well conceived. The duty of the Chief Justice in the matter of constitution of Bench is a duty which he discharges in respect of existing Judges. – If doubt arises as to whether a Judge is still holding office or has retired according to the provisions of the Constitution, it is not for the Chief Justice to make his own decision in the matter on facts unknown to him. If, in the instant case, the decision or the opinion of the Government of India, Ministry of Home Affairs, ultimately turns out to be correct and the petitioner’s own impression about his own age turns out to be incorrect, then by asking the Chief Justice to treat the petitioner as a sitting Judge and not as a retired Judge and by asking him further to allocate judicial work to him, the Chief Justice may be asked to face the peril of having judicial work done by a retired Judge. That must be avoided lest it may result in disastrous consequence to judicial administration.

19. The petitioner says that the Ministry of Home Affairs has not correctly decided his age. That is a dispute which he may fight out against the Ministry of Home Affairs, if he has his remedies. By sidetracking the attack on the Chief Justice of this Court the petitioner is not entitled to succeed.

20. For the reasons aforesaid I dismiss this application.

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