In a notable development, the Calcutta High Court has recommended administrative action against a District Judge for material irregularity and impropriety in a judicial order.
The case concerned the order passed by the District Judge to dismiss a first appeal on grounds of delay.
The application for condonation of delay was dismissed on the grounds that the appeal lacked merits.
While considering the appeal filed against the order of the District Judge, a single bench of the Calcutta HC observed that the order was passed with material irregularities.
The HC noted that the appellant prayed for condonation of delay (179 days) on several grounds including medical grounds(ostero-athritis). The single bench of Justice Bibek Chaudhary noted that the lower Appellate Court failed to consider the medical certificates issued by qualified doctors exhibited by the appellant and wrongly rejected the application under Section 5 of the Limitation Act.
The court remarked, " this court is of the considered opinion that the lower appellate court has committed a material illegality by deciding an appeal on merit while considering an application under Section 5 of the Limitation Act."
The bench also noted the District Judge had appeared as an advocate for the respondent in the case in an earlier appeal filed in the HC against the preliminary decree passed in the same suit. The HC observed that the District Judge was aware of this fact, as the judgment in the earlier appeal was part of the record.
"It is not only axiomatic but also considered to be a rule of judicial prudence that justice must not only be done but it must appear to have been done. The learned Advocate for the appellant has urged that the appellant does not want to raise this issue in the instant appeal but he will always feel that he was denied justice by the judge who previously represented the respondents before this Court", the HC remarked.
The court further added,
"I am not unmindful to note that the Hon'ble Supreme Court in number of cases deprecated that trend of the higher judiciary of making criticism or adverse remark against a judicial officer in a judiciary pronouncement. However, the Hon'ble Supreme Court observed that unworthy conduct of subordinate judicial officer cannot be overlooked. Power of superior court to express its opinion and make even critical observations regarding the conduct of judicial function by a judicial officer is undeniable, but the power is to be exercised only when necessary for the purpose of reaching a decision on the main controversy before it."
The single bench also cited certain SC precedents to buttress the above observations.
Thus the court ordered that matter should be placed before the Administrative Committee to consider the conduct of the Judge for any action on the administrative side of the Calcutta High Court.
"For the reasons stated above, this Court is of the considered view that the observation of this Court made hereinabove should be placed before the Administrative Committee of this Court to consider as to whether under the facts and circumstances, conduct of the concerned learned Judge request any action on the administrative side of this Court".
While allowing the appeal, the impugned judgment and order of dismissal of the application under Section 5 of the Limitation Act was set aside and the application was remanded to the District Judge. The HC also observed that the matter should have been dealt with by the Additional District Judge, who had earlier dealt with the appeal from the preliminary decree.
Earlier in the case of Krishna Prasad Verma v. State of Bihar & Ors., the apex court has observed that the disciplinary proceedings should not be initiated against Judicial Officers merely on the basis that a wrong order has been passed by them or merely on the ground that the judicial order is incorrect. The bench comprising of Justice Deepak Mishra and Aniruddha Bose opined that, "to err is human and not one of us who has held judiciary office, can claim that we have never passed a wrong order."
Case Details Case Name : Biswanath Pal v. Sankar Nath Pal & Ors. Case No. : S.A 8 of 2016 with CAN 9460 of 2019 Corum : Justice Bibek Chaudhuri Appearances : Adv. Ayan Banerjee & Adv. Soumo Chaudhury (for appellant)Adv. Saumyean Datta (respondent nos. 1,2,4), Adv. Ashutosh Mukherjee (for respondent no.1) , Adv. Susmita Mazumder ( respondent no. 2&4) and Adv. Sarajit Sen & Adv. Tapas Singha Roy (respondent no.5)
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