Smt. K. Padmavathamma Vs. Smt. R. Uma Maheswari and ors. - Court Judgment

Excerpt:
civil - bias - section 64 of andhra pradesh court fees and suits valuation act - trial court dismissed suit of respondent for declaration of title and possession - on appeal district judge made some unwarranted observation thereby decreed suit of respondent and caused prejudice to appellant - judgment of district judge set aside and case remanded back to additional district judge. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - as is well settled, this court would not be in a position to reappreciate the evidence as appreciated by the courts below, but the learned counsel for the appellants submits that it is unfair to expect a fair judgment from a judicial authority who appears to have had some beliefs, rightly or wrongly, about the capability, capacity and integrity of the trial judge. but some how the district judge made sweeping remarks for reasons best known to him against the trial judge. ' the judgment of the supreme court was based on certain other earlier supreme court judgments like k.orderbilal nazki, j.1. heard the learned counsel for the parties. admit. with their consent this second appeal is decided at this stage. 2. the question raised in this appeal with regard to which the parties were heard was that, in the facts and circumstances of the case whether it can be said that the appellate court was biased as against the trial court and if so, would it vitiate the judgment passed by the appellate court? in a suit for injunction, which was later on amended, a relief for declaration of title and possession was also sought from the trial court. the trial court dismissed the suit. on appeal, the appellate court allowed the appeal and decreed the suit. basically the findings shall have to be arrived at on the issues framed, on the basis of the evidence led by the parties. the two courts below appreciated the evidence and came to different conclusions. as is well settled, this court would not be in a position to reappreciate the evidence as appreciated by the courts below, but the learned counsel for the appellants submits that it is unfair to expect a fair judgment from a judicial authority who appears to have had some beliefs, rightly or wrongly, about the capability, capacity and integrity of the trial judge. he has drawn the attention of the court towards the observations made by the appellate judge in his judgment. relevant observations are, 'nothing more is required to observe that concerned presiding officer of the lower court is either incompetent to decide title suit of this nature or he is resorting to misread, or twist or to ignore the material facts to arrive at the conclusion, which he arrived at in the judgment under appeal'. these comments, in the facts and circumstances of the case, were unwarranted. the judges are expected to have some restraint while making comments, particularly when the appellate courts are hearing the appeals against the lower court judgments. our judicial system is a hierarchal system in which if a mistake is committed at the first stage, it can be corrected at the next higher level. since it is expected that a mistake may be committed by a particular court in appreciating the evidence or law, therefore, there are remedies by way of appeals or revisions. but some how the district judge made sweeping remarks for reasons best known to him against the trial judge. when a judge hears a matter, it is presumed in law that he has an open mind in hearing the matter without any kind of prejudice in favour of or against any of the parties or the lawyers appearing therein or the judges against whose judgment the appeal is being heard. manifestly, some prejudice was at work when the learned district judge was hearing the appeal. the supreme court has held judicial bias on account of judicial obstinacy a ground for reversing the finding. in state of west bengal v. shivananda pathak (1) the supreme court posed a question, whether judicial obstinacy can be treated as a form of bias. the question was answered positively. in para-26 the court observed;'bias has many forms. it may be pecuniary bias, personal bias, bias as to subject matter in dispute, or policy bias etc. in the instant case, we are not concerned with any of these forms of bias. we have to deal, as we shall presently see, a new form of bias, namely, bias on account of judicial obstinacy.'then, in para-28 the supreme court held;'if a judgment is overruled by the higher court, the judicial discipline requires that the judge whose judgment is overruled must submit to that judgment. he cannot, in the same proceedings or in collateral proceedings between the same parties, re-write the overruled judgment. even if it was a decision on a pure question of law which came to be overruled, it cannot be reiterated in the same proceedings at the subsequent stage by reason of the fact that the judgment of the higher court which has overruled that judgment, not only binds the parties to the proceedings but also the judge who had earlier rendered that decision. that judge ;may have his occasion to reiterate his dogmatic views on a particular question of common law or constitutional law in some other case but not in the same case. if it is done, it would be exhibitive of his bias in his own favour to satisfy his egoistic judicial obstinacy.'the judgment of the supreme court was based on certain other earlier supreme court judgments like k. kriapak v. union of india (2), s.p. kapoor v. state of himachal pradesh (3), mineral development limited v. state of bihar (4), financial commissioner (taxation), punjab v. harbhajan singh (5) and on the frequently quoted maxim of law by lord hewart c.j. in r. v. sussex jj., exp. mc. carthy (1924) 1 kb 256, 259, that 'it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.'3. going by the judgment of the supreme court and by the remarks made by the district judge it becomes manifestly clear that it is not seen whether justice is being done, justice might have or might have not been done but certainly it does not appear that justice has been done. the judgment should not give an impression that the deciding authority whether judicial or quasi judicial had any kind of bias towards the parties, advocates or towards the person whose decision was under appeal before him. 4. following the judgments of the supreme court and for the reasons set out herein above, i set aside the judgment passed by the district judge and remand the matter back to the district judge for fresh hearing and a decision on merits. i am told that the learned judge who heard the matter in appeal earlier has already been transferred. therefore, the matter be heard by the present additional district judge, madanapalle. the parties through their counsel are directed to before the additional district judge, madanapalle on 26th february,2001. court fee be refunded to the appellant in terms of section 64 of the a.p. court fees and suits valuation act. 5. the second appeal is accordingly disposed of. no costs. however, it is made clear that while setting aside the judgment of the appellate court this court has not gone into the merits of the controversy.

Judgment:
ORDER

Bilal Nazki, J.

1. Heard the learned counsel for the parties. Admit. With their consent this second appeal is decided at this stage.

2. The question raised in this appeal with regard to which the parties were heard was that, in the facts and circumstances of the case whether it can be said that the Appellate Court was biased as against the trial Court and if so, would it vitiate the judgment passed by the Appellate Court? In a suit for injunction, which was later on amended, a relief for declaration of title and possession was also sought from the trial Court. The trial Court dismissed the suit. On appeal, the Appellate Court allowed the appeal and decreed the suit. Basically the findings shall have to be arrived at on the issues framed, on the basis of the evidence led by the parties. The two Courts below appreciated the evidence and came to different conclusions. As is well settled, this Court would not be in a position to reappreciate the evidence as appreciated by the Courts below, but the learned counsel for the appellants submits that it is unfair to expect a fair judgment from a judicial authority who appears to have had some beliefs, rightly or wrongly, about the capability, capacity and integrity of the trial Judge. He has drawn the attention of the Court towards the observations made by the Appellate Judge in his judgment. Relevant observations are, 'Nothing more is required to observe that concerned Presiding Officer of the lower court is either incompetent to decide title suit of this nature or he is resorting to misread, or twist or to ignore the material facts to arrive at the conclusion, which he arrived at in the judgment under appeal'. These comments, in the facts and circumstances of the case, were unwarranted. The Judges are expected to have some restraint while making comments, particularly when the Appellate Courts are hearing the appeals against the lower Court judgments. Our judicial system is a hierarchal system in which if a mistake is committed at the first stage, it can be corrected at the next higher level. Since it is expected that a mistake may be committed by a particular court in appreciating the evidence or law, therefore, there are remedies by way of appeals or revisions. But some how the District Judge made sweeping remarks for reasons best known to him against the trial Judge. When a Judge hears a matter, it is presumed in law that he has an open mind in hearing the matter without any kind of prejudice in favour of or against any of the parties or the lawyers appearing therein or the Judges against whose judgment the appeal is being heard. Manifestly, some prejudice was at work when the learned District Judge was hearing the appeal. The Supreme Court has held judicial bias on account of judicial obstinacy a ground for reversing the finding. In State of West Bengal v. Shivananda Pathak (1) the Supreme Court posed a question, whether judicial obstinacy can be treated as a form of bias. The question was answered positively. In para-26 the Court observed;

'Bias has many forms. It may be pecuniary bias, personal bias, bias as to subject matter in dispute, or policy bias etc. In the instant case, we are not concerned with any of these forms of bias. We have to deal, as we shall presently see, a new form of bias, namely, bias on account of judicial obstinacy.'

Then, in para-28 the Supreme Court held;

'If a judgment is overruled by the higher court, the judicial discipline requires that the Judge whose judgment is overruled must submit to that judgment. He cannot, in the same proceedings or in collateral proceedings between the same parties, re-write the overruled judgment. Even if it was a decision on a pure question of law which came to be overruled, it cannot be reiterated in the same proceedings at the subsequent stage by reason of the fact that the judgment of the higher court which has overruled that judgment, not only binds the parties to the proceedings but also the Judge who had earlier rendered that decision. That Judge ;may have his occasion to reiterate his dogmatic views on a particular question of common law or constitutional law in some other case but not in the same case. If it is done, it would be exhibitive of his bias in his own favour to satisfy his egoistic judicial obstinacy.'

The judgment of the Supreme Court was based on certain other earlier Supreme Court judgments like K. Kriapak v. Union of India (2), S.P. Kapoor v. State of Himachal Pradesh (3), Mineral Development Limited v. State of Bihar (4), Financial Commissioner (Taxation), Punjab v. Harbhajan Singh (5) and on the frequently quoted maxim of law by Lord Hewart C.J. in R. v. Sussex JJ., exp. Mc. Carthy (1924) 1 KB 256, 259, that 'It is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.'

3. Going by the judgment of the Supreme Court and by the remarks made by the District Judge it becomes manifestly clear that it is not seen whether justice is being done, justice might have or might have not been done but certainly it does not appear that justice has been done. The judgment should not give an impression that the deciding authority whether judicial or quasi judicial had any kind of bias towards the parties, Advocates or towards the person whose decision was under appeal before him.

4. Following the judgments of the Supreme Court and for the reasons set out herein above, I set aside the judgment passed by the District Judge and remand the matter back to the District Judge for fresh hearing and a decision on merits. I am told that the learned Judge who heard the matter in appeal earlier has already been transferred. Therefore, the matter be heard by the present Additional District Judge, Madanapalle. The parties through their counsel are directed to before the Additional District Judge, Madanapalle on 26th February,2001. Court fee be refunded to the appellant in terms of Section 64 of the A.P. Court Fees and Suits Valuation Act.

5. The Second Appeal is accordingly disposed of. No costs. However, it is made clear that while setting aside the judgment of the appellate court this Court has not gone into the merits of the controversy.