Case Note & Summary
The appeal by special leave was filed by P.K. Ghosh, IAS, Municipal Commissioner, and another, officials of the Ahmedabad Municipal Corporation, challenging an order dated 18 March 1994 passed by a Division Bench of the Gujarat High Court in a contempt petition filed by respondent J.G. Rajput, an employee of the Corporation. The controversy arose from the suspension of the respondent on 14 March 1988, which he challenged in Special Civil Application No. 1497 of 1988. In that proceeding, advocate B.J. Shethna represented the respondent and obtained an interim stay of suspension. After Shethna was elevated to the Bench, a settlement was reached between the Corporation and the respondent, recorded on 28 February 1990, and the writ petition was permitted to be withdrawn by C.K. Thakkar J. The Corporation contended that the terms of settlement were complied with, including confirmation of service and allotment of residential quarter. Subsequently, on 8 April 1991, the respondent filed a review application, MCA No. 540 of 1991, which was rejected on 2 April 1992 by C.K. Thakkar J. after satisfying himself that the terms were complied with. Later, on 7 May 1993, the respondent was served with a chargesheet for theft of municipal property, which the Corporation claimed was unrelated to the earlier dispute. The respondent then filed MCA No. 1109 of 1993 seeking to stay the inquiry, punish the appellants for contempt, and restore the closed writ petition; this application was dismissed on 30 July 1993 by C.K. Thakkar J. Undeterred, the respondent filed a contempt petition, MCA No. 1841 of 1993, under the Contempt of Courts Act, 1971, alleging that issuance of the chargesheet violated earlier orders and the compromise terms. The contempt petition came up before a Division Bench comprised of R.A. Mehta and B.J. Shethna JJ. The appellants objected to Justice Shethna hearing the matter because he had appeared as counsel for the respondent in the original Special Civil Application No. 1497 of 1988. Despite repeated objections, the Bench proceeded and on 18 March 1994 passed the impugned order issuing Rule and granting interim stay of the departmental inquiry. Aggrieved, the appellants approached the Supreme Court by special leave. The Supreme Court noted that the respondent in his counter affidavit expressly admitted that B.J. Shethna had appeared as counsel for him in the earlier writ petition. The Court observed that the basic facts were undisputed and there was a reasonable basis for the litigant to expect that his matter should not be heard by a particular judge, and in the absence of compelling necessity, the judge should recuse. The Court emphasized the principle that justice should not only be done but must also be seen to be done, and that the credibility of the justice delivery system and public confidence in the impartiality of the judiciary require the avoidance of any reasonable apprehension of bias. The Court held that the refusal of Justice Shethna to recuse himself in these circumstances vitiated the impugned order. Accordingly, the appeal was allowed and the impugned order dated 18 March 1994 was set aside. Since Justice Shethna had by then been transferred to the Rajasthan High Court, no direction was needed for the matter to be heard by a Bench excluding him.
Headnote
A) Judicial Ethics - Recusal - Reasonable Apprehension of Bias - Contempt of Courts Act, 1971 - A judge who had appeared as counsel for a litigant in a previous connected Special Civil Application should recuse from hearing a subsequent contempt petition based on that earlier matter when a specific objection is raised. The Supreme Court held that the litigant's apprehension was reasonable and that non-recusal tended to erode credibility of the administration of justice. Held that B.J. Shethna J. should have recused himself (Paras Not mentioned). B) Contempt of Court - Interim Relief - Vitiation for Bias - Contempt of Courts Act, 1971 - An order passed by a Bench including a judge who should have recused is vitiated, and therefore the impugned order dated 18.3.1994 granting rule and interim stay of inquiry was set aside. The Supreme Court emphasized that justice must not only be done but must also be seen to be done. Held that appeal allowed and impugned order set aside (Paras Not mentioned).
Issue of Consideration
Whether a judge who had appeared as counsel for a party in a prior proceeding should recuse himself from hearing a contempt petition arising out of that proceeding, and whether the order passed by a bench including such judge is sustainable in law
Final Decision
Appeal allowed. The impugned order dated 18.3.1994 passed by the Division Bench of the Gujarat High Court was set aside. The Supreme Court held that B.J. Shethna J. should have recused himself from hearing the contempt petition in view of the specific objection based on his prior appearance as counsel for the respondent in the connected matter, and the order was vitiated for this reason alone. Since B.J. Shethna J. had been transferred to the Rajasthan High Court, no direction was needed for the matter to be heard by a Bench excluding him.
Law Points
- justice must not only be done but must also be seen to be done
- a judge should recuse from hearing a matter if there is a reasonable basis for litigant's apprehension that the judge may be biased
- especially where the judge had previously appeared as counsel for a party in a connected matter
- failure to recuse vitiates the order passed
- credibility of justice delivery system and public confidence require impartiality and absence of appearance of bias
