SHRI BHAJANLAL, CHIEF MINISTER, HARYANAversusMIS JINDAL STRIPS LTD. AND ORS .

              SHRI BHAJANLAL, CHIEF MINISTER, HARYANA                               A
                                          v.
.,                   MIS JINDAL STRIPS LTD. AND ORS .

                                 AUGUST 8, 1994

            [M.N. VENKATACHALAIAH CJ. AND S. MOHAN, JJ.]                            B

           Code of Civil Procedure, 1908 Section 25-Transfer Petition-Bias-Ap-
     prehension of-<:ase admitted by a Judge who later became acting Chief Jus-
     tice-Case listed before another Bench-Direction for delisting from other
     Bench and listing before the said Judge-Application'for transfer-After ad-     C
     vance stage of arguments-Held: Mere Transfer of the case from one Bench
     to another is not justified ground for allegation of bias.

           Administrative Law-Natural Justice-Bias-The decision maker
     should have no interest direct or indirect-Non-pecuniary bias-Nature and
     extent of interest to be seen.                                                 D
           Practice and Procedure-Affidavit relating the events and conversation
     among the judges-Litigant cannot seek information about what transpired
     between the Judges of the Cowt regarding his case.

            Judicial Propriety-Case directed to be delisted from one Bench for
                                                                                    E
     listing before another Bench-Another judge of the Court wrote letter enquir-
     ing about delisting-Held : enquiries and letters not consistent with the
     restraint expected of the high offices.

            In a writ petition filed by the Respondent No.1, allegations of F
     malafide were levelled against the Petitioner. Petition was admitted by
     Judge 's' who later became acting Chief Justice and the matter was listed
     before another Tax Bench, Judge 'S' directed the matter to be delisted from
     the other Bench and listed before him. Judge 'M' gave letters to Registrar
     seeking bis explanation regarding the delisting. Judge '.S' delisted the G
     matter from bis Bench and the petition was listed before Tax Bench. Aller
     appointment of Chief Justice, Judge 'S' became senior most Judge presid-
     ing over the tax bench and the petition was again listed before him. At the
     advance stage 'or hearing, appellant filed application for transfer of the
     petition on the ground of bias. During the hearing Judge 'M' had written
     to the Chief Justice requesting tO know the reasons for transfer of the case H
                                         445
    446                   SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A to the bench comprising or Judge 'S'.
          Appellant filed affidavit stating the events and commu·nication be-
    tween the Judges of the High Court regardi_ng the listing and delisting or
    the petition without stating the source or the information. In the rejoinder
    affidavit he stated that before filing of the petition the information was
B   confirmed by the then Chief Justice, but his name was not mentioned in
    the petition since he had refused.

           Contention of the appellant was that transfer of single case is
    sufficient to establish the interestedness or Judge 'S'. The contention of
C   Respondent No. 1 was that it was the normal practice, if date was fixed for
    final hearing by a particular Bench, it should come before the same Bench.
    Therefore, delisting from Tax Bench and listing it before his Bench was
    not the sign of bias.

          Dismissing the appeal, this court
D          HELD: 1. On the ground of allegation of malafides it cannot be said,
    a particular Bench cannot hear the case. To make the transfer of the writ
    petition from one Bench to another, a ground for allegation of bias Is          '
                                                                                    I
    unjustified. Under the facts and circumstances of the case, there is nothing    '
    to indicate that the then Acting Chief Justice evinced and inierest In
E   hearing this matter, or that he was biased. [454-F, GI

          2. In the case of non-pecuniary bias, regard is to be had to the extent
    and nature of interest. Then alone the Judge wm be disqualified. Bias is
    the second limb or natural justice. Prima facie no one should be a judge in
    what is to be regarded as 'Sua Causa' Whether or not he is named as a
F   party. The decision maker should have no interest by way of gain or
    detriment in the outcome or a proceeding. Interest may take many forms.
    It may be direct, it may be indirect, it may arise from personal relationship
    or from a relationship with the subject matter, from a close relationship
    or from_ a tenuous one. [455-B, 454-H, 455-A]
G
          R. v. Sussex Justices, Ex. P Mc Carthy, [1924] 1 KB 256 and R. v.
    Branslcy Lisensing Justices, Ex 0 Bransley and District Licensed Victuallers'
    Association, [1960] 2 QB 167, Metropolitan Properties Co. (FGC) Ltd.
    Lannon, [1969] 1 QB 577, referred to.

H         3. It is deprecating that the appellants sought information as to what



                                                                                    _r
              BHAJANLAL v. JINDAL STRIPS LTD. [MOHAN, J.)              447

itanspired within "the judicial fortress" among the judicial brethren.        A
Judges should not be dragged in and their names mentioned in the
matters. (457-8)

      4. The conduct of Judge 'M' might incur the criticism of transgress-
ing the proprieties of the high office. The enquiries and letters by the
Judge .are not consistent with the restraint expected of the High offices.    B
Courts are a storm centre facing the panoply of human problems, crowded
dockets an unrelating work schedules. The Judges must remain unruffied
and cal"l in the midst of contending forces. [457-E-F-G, 458-A)

    · Public Utilities Commission of the District of Columbia v. Franklin S   C
Pa/Ii    ~43. US 451, referred to.   ,

       Ex parte American Steel Ba"et Co. 57 Law Ed. US. 1379 Bell v.
Chandler, 569, Federal Report 2nd Series 556, United States v. Scuito, 531
Fedral Report, 842; Metropolitan Properties Company v. Lannon, (1969) 1
QBD 511,Ranjit Thakurv. U.O./., (1988) l SCR512;Lalita v.State of Bihar, D
AIR (1957) SC 198; M.Y. Shareef v. The Hon'ble Judges of the High Court
of Nagpur, (1955) 1 SCR 756; Gujarat Electricity Board v. Atmaram Su11-
gamal Poshni, (1989) 2 SCR 357; The Barium Chemicals Ltd. v. The
Company Law Board, (1969) Suppl. SCR 311; Sukhwinder Pal Bipin Kumar
v. State of Punjab, (1989) 2 SCR 31 and Smt. Savithramma v. CECI 1 · E
Naronha, (1988) Snppl; 2 SCR 561, cited.

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5525 of
1994.

     From the Judgment and Order dated 6.10.1993 of the High Court            F
of Punjab and Haryana at Chandigarh in C.M. 9909/93 in C.W.P. 1898/92.

                                         With

        T.P. (C) 880/93.
                                                                       -      G
  -· Kapil Sibal, R. Karanjawala and Mrs. Manik Karanjawa for the·
Appellants.

        Shanti ·Bhushan and Jayant Bhushan for the Respondents.

        The Judgment of the Court was delivered by                            H
    448                   SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.

A         MOHAN, J. Leave granted.

          The appellant is the Chief Minister of Haryana. The first respondent
    filed a Writ Petition C.W.P. No.1898 of 1992 challenging the assessment
    order passed by the Deputy Excise and Taxation Commissioner-cum-As-
    sessing Authority, Hissar, Haryana confirming a demand for sales tax of
B   Rs. 2,04,13,895. Similar writ petitions have been filed against separate
    assessment orders by the first respondent for a total amount of payment
    aggregating to a liability of Rs.20 crores. In these writ petitions allegations
    of personal mala fide have been levelled against the appellant.

C         The writ petition came up for preliminary hearing on 7.2.92 before a
    Division Bench consisting of S.S. Sodhi and K.C. Garg JJ. The writ petition
    was admitted and ex parte ad-interim stay was granted. After notice, when
    the matter came up for hearing before a Bench consisting of S.S. Sodhi
    and R.S. Mongia, JJ, it was directed to be listed for final hearing on 3.8.92.
    The then Chief Justice Mr. Rama Jois Proceeded on leave on 1.8.92.
D   Thereupon, S.S. Sodhi, J, became the Acting Chief Justice.

            On 3.8.92, when the writ p·etition was listed before the Tax Bench
    'comprising of A.P. Choudhary and N.K. Sodhi, JJ, S.S. Sodhi, J. directed
     the writ petition to be delisted from the Tax Bench before which it was
E    listed and transferred the case presided over by S.S. Sodhi, J, ~elf. It
     appears this was the only case which was directed to be delisted from the
     Tax Bench and transferred to the Division Bench presided over by the then
     Acting Chief Justice,

           On 21.S.92, Chief Justice Mr. Rama Jois returned from leave and
F   resumed charge. On 24.8.92 this Court in Special Leave Petition (Civil) No.
    7700 of 1992 arising out of a connected Writ Petition (Civil) No. 3864 of
    1992 directed the case be remanded to the High Court ordering ex-
    peditious disposal along with C.W.P. No. 1898 of 1992. On 1.9.92, Chief
    Justice Rama Jois resigned. Thereupon, again, S.S. Sodhi, J, became Acting
G   Chief Justice. He continued in that capacity till 13.11.92. When the writ
    petition was pending hearing, G .R. Majithia, J, sought an explanation from
    the Registrar (Judicial) as to why the case was transferred from the Tax
    Bench to the Bench presided over by the Acting Chief Justice. On 21.10.92,
    S.S. Sodhi, J. delisted the writ petition from his Bench and re-transferred
    it to the Tax Bench comprising of A.L. Bahri and Ashok Bhan, JJ. The
H   case did not reach for hearing before this Bench. On 22.10.92, G.R.
            BHAIANLAL V. JINDAL STRIPS Lm. [MOHAN, Jc]                    449

Majithia, J. once again wrote to the Registrar (Judicial) seeking compliance     A
with his earlier order dated 20.10.92. This letter was forwarded by the
Registrar (Judicial) to the Acting Chief Justice soliciting orders in respect
thereof. It was directed that the note be placed in the file.

      On 14.11.92, justice S.D. Agarwala was appointed as chief Justice,
As result, S.S. Sodhi, J. became the seniormost puisne Judge.                    B

       On the re-opening of the High Court after summer vacation, the writ
petition along with other connected petitions were placed for hearing
before the Tax Bench comprising of S.S. Sodhi and Ashok Bhan, JJ. A
request was made for an early hearing of the writ petition on behalf of the      C
first respondent. Accordingly a direction was issued that the writ petitions
be placed for final hearing on 13.9.93. The hearing went on on 13.9.93. A
preliminary objection was raised on behalf of the State about the main-
tainability of the writ petition since the alternate statutory remedies avail-
able to the first respondent had not been exhausted. The Division Bench
did not consider that objection but directed the arguments be addressed          D
on merits. The petitions were adjourned for further order to 4.10.93.

       The records bear out G.R. Majithia, J. addressed a letter to the
learned Chief Justice on 13.9.93 referring to his earlier communication on
the subject and requested to know the circumstances under which the writ         E
petition had been transferred to a Division Bench presided over by S.S.
Sodhi, J. Be that so. On 4.10.93, the hearing recommended on the writ
petition.

      The appellant on his return after long tour of Rajasthan and Delhi,
on 4.10.93, came to know about these happenings. They were the cause of          F
some consternation and apprehension in his mind since allegations of
malafides had been levelled against him by the first respondent who is said
to be a political opponent. Therefore, on 4.10.93 an application C.M. No.
9909 of 1993 was moved requesting the Division Bench to transfer the
matter from their Bench. Notice was issued and the hearing was fixed on          G
6.10.93.

       After hearing the arguments, the application for transfer was dis-
missed. However, time was granted till 12.10.93 to approach this Court and
it was indicated that thereafter the matter would be taken up on day to day
basis.                                                                      H
    450                   SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.

A          Appellant assails in this appeal the order refusing transfer. During
    this civil appeal, an additional affidavit was filed on behalf of the appellant
    giving details of the course which the writ petition took. He would have it,
    on 3.8.93, when S.S. Sodhi, J. took over as Acting Chief Justice the writ
    petition was listed at Serial No. 342 before A.P. Chaudhari and N.K. Sodhi,
B   JJ. S.S. Sodhi, J. orally directed the Registrar (Judicial), Shri B.R. Gulati
    that the writ petition along with connected writ petitions be listed before
    a Bench presided over by. the then Acting Chief Justice. The note in
    support of the same is produced as Annexure 'F'.

          The affidavit further proceeds to state that the deponent reliably
C learnt that the then Acting Chief Justice, in fact, went to the Chamber.s of
    N .K. Sodhi, J. and told him that by mistake it had been listed before a
    Bench presided over by A.P. Chaudhari, J. N.K. Sodhi, J. was somewhat
    agitated and told the Acting Chief Justice that the transfer of the case from
    that Bench was not in accordance with the normal practice of the High
    Court. There was no reason why the matter was removed from the roaster.
D   A.P. Chaudhari, J. also is said to have sent a formal note to the Registrar
    as to why this particular matter had been removed from their Bench and
    the note was apparently returned with an endorsement by the Registrar
    (Judicial) indicating that this was done on to the oral directions of the
    Acting Chief Justice. the deponent believed that S.S. Sodhi, J. thereafter
E   met N.K Sodhi, J. to express his regret for what had happened The list
    of the Tax Bench comprising of A.P. Chaudhari and N.K. Sodhi, JJ. was
    circulated on the evening of August, 1, 1992 on or the morning of August
    2, 1992. The constitution of the Tax Bench of A.P. Chaudhari and N.K.
    Sodhi, JJ. was circulated on the evening of 1st August ormorning of 2nd
F   August, 1992. On 31.7.92 a request was made before S.S. Sodhi, J. that
    CWP 1898/92, which he had while presiding over the Bench fixed for 3.8.92
    may not be taken up on that day.

          His further averment is as under :

                 "It is further reliably learnt that Hon'ble Chief Justice Rama
G
             Jois returned to Chandigarh in August, 1992 and both Justice N.K.
             Sodhi and Justice A.P. Chaudhari met the Hon'ble Chief Justice
             and it seems that the Hon'ble Chief Justice conveyed to them that
             he had already told the Acting Chief Justice that this should not
             have been done and that the Acting Chief Justice should not hear
H            the matter when it came up for hearing. Under these circumstan-
                 BHAJANLAL v. JINDAL STRIPS LTD. (MOHAN, J.]                   451

             ces, it was felt that the Hon'ble Judges from whose Bench it was A
             delisted should not carry the matter any further.

                If these facts are correct, obviously Hon'ble Justice S.S. Sodhi
             should not have heard this matter when it came up for hearing
             before him in October, 1992.
                                                                                      B
                 ...... The deponent feels that it is imperative in matters of this
              nature that the Court believes that the Executive does not file
             applications of this nature irresponsibly and with a motivation to
             have the mater heard by one Bench or another. The deponent has
             disclosed these facts as they have come to his knowledge, so that
             the court may not have an impression that the application was C
             motivatedly filed and that by the filing of this application, the
             dignity of the Court is being compromised. The deponent herein
             respects the highest traditions and dignity of the Court, and would
             in no circumstances ever compromise it. The facts set out herein
             all stated instead of show that there was genuine apprehension in D
             the mind of the deponent and that these facts were to the
             knowledge of the Leaned Judge in the matter. Since the petition
             involved allegations of personal malafides against the deponent,
             and since the deponent was joined as a party- respondent, the
             circmnstances as set out hereinabove warranted that the Learned
             Judge need not have heard the matter himself, and that the Hon'ble E
             Chief Justice would have, in the circumstances, directed the matter
             to be listed before any appropriate Bench. It is not that the
             deponent was, and is wishing the matter to be heard by any
             particular Bench. It is with this view that the present affidavit is
             being filed."
                                                                                      F
          A counter affidavit has been filed on behalf of the first respondent
    that the facts stated in the additional affidavit are not admitted by the first
    respondent since he has no means to verify the correctness of the same.
    Further, the appellant has not disclosed in his affidavit the source of his
    information.
                                                                                      G
          On 18.11.93 serious arguments were addressed whether the affidavit
    must disclose the source of information. Therefore, the first respondent
    though fit to file an affidavit that" his counsel Shri Shanti Bhushan con-
    tacted former Chief Justice Mr. Rama Jois in the evening of 18.11.93 itself.
    He wrote about the contents of paragraph 8 and also informed him that H




L
    452                   SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A the counsel for the appellant had stated before this Court that the infor-
    mation contained in that paragraph had been conveyed to the appellant by
    Chief Justice Mr. Rama Jois. The counsel for the respondent asked Chief
    Justice Mr. Rama Jois whether it was so to which the reply was that he
    considered it improper to talk about any conversation which might have
    taken place between the Chief Justice and other Judges of the High Court
B   in the Chambers. In view of this Principle he could not give any such
    information to any person much less to a party or its counsel. Thus, it is
    clear that Chief Justice Mr. Rama Jois Could not have conveyed any such
    information to the appellant."

C         In response to this, the appellant stated that prior to the date of his
  filing the petition for transfer on 4.10.93 he contacted the then Chief Justice
  Mr. Rama Jois on telephone and asked him why S.S. Sodhi, J, had taken
  up the matter. The appellant would state that he got the information that
  Chief Justice Mr. Rama Jois had advised S.S. Sodhi, J. not to do so. This
  was confirmed by Chief Justice Mr. Rama Jois. The appellant was also
D informed that Chief Justice Mr. Rama Jois had informed S.S. Sodhi, J. that
  it was wrong on the part of S.S. Sodhi, J. to have transferred the matter in
  the first place. The appellant states that the retired Chief Justice Mr. Rama
  Jois was asked whether his name could be mentioned in the application to
  be moved by him. The appellant was replied that this would embarrass him
E and his name should not be brought into the proceedings. Therefore, he
  did not mention the judge's name in the application and in the additional
  affidavit filed by him.

         Mr. Kapil Sibal, learned counsel for the appellant submits that
F  transfer of one case alone to the file of the then Acting Chief Justice would
   be enough to establish his interestedness. The right to fair trial is guaran-
   teed under the Constitution. It entitles a litigant to adjudication of a cause
   by a judge who is perceptibly and demonstrably unbiased and without
   prejudice. In order to dispel any suspicion of a litigant a judge should
   recuse himself even though the judge is not conscious of any bias or
G ·prejudice. Such a prejudice, a state of mind, cannot be proved by direct
   and positive evidence. Therefore, it cannot be judged on the basis of an
   objective standard but from the point of view of the litigant. In support of
   his submission learned counsel cites the following cases :

H         Ex Pane American Steel Ba"e/ Co. 57 Law Ed. U.S. 1379 at 1383-84.
            BHAIANLALv. JINDAL STRIPS LTD. [MOHAN,J.]                      453

      Bell v. Chandler, 569 Federal Report 2d Series 556 at 558-559 where A
the test adopted is not bias or prejudice alone but the bent of mind that
may prevent impartiality.

       United States v. Scuito, 531 Federal Report 842 at 845 wherein the
test is to accept the affidavit which is taken as true for the purpose of
motion.                                                                   B

      Metropolitan Properties Co. v. Lannon, [1969] 1 Queen's Bench
Division 577 at 599.

      This Court had also adopted the same principle as seen from Ranjit          C
77iakur v. Union of India, [1988] 1 SCR 512 and Lalita v. State of Bihar,
AIR (1957) SC 198 at paragraphs 20 and 21.

      Thus, it is submitted that the learned Judges had gone wrong in
refusing to order transfer when the litigant entertained suspicion that he
may not get justice at the hands of this Bench, that too, in a sensitive matter   D
where allegations of ma/a fides have been made against the appellant.

      Mr. Shanti Bhushan, learned counsel for the first respondent submits
that a clear finding has been recorded by the Bench there could be no
possible occasion for the appellant to entertain any apprehension that he
would not get justice from the Bench. The only gronnd for transfer urged          E
was that the petition was taken up for hearing by S.S. Sodhi, J. after he had
directed the matter to be delisted from the Tax Bench and be listed before
his Bench. This ground is untenable. It was the normal practice if a date
was fixed for final hearing by a particular Bench, it should come before the
same Bench. This practice has not been denied by the appellant. A request         F
was made by the Advocate General of Haryana, the counsel for the
appellant before S.S. Sodhi, J. that since he was busy otherwise the case
might not be taken up on 3.8.92. This request was acceded to. On 31.7.92,
when this request was made S.S. Sodhi, J. was not Acting Chief Justice.
The learned Advocate General knew that the matter should be listed
before S.S. Sodhi J.'s Bench. However, when it was mistakenly shown on            G
2.8.92 before a different Bench and since 3.8.92 S.S. Sodhi, J. became
Acting Chief Justice he directed the matter be posted before him for
hearing. The case remained on the Bench of S.S. Sodhi, J. from 3.8.92 to
21.10.92 and no objection whatsoever was raised. The application of the
appellant was a belated attempt after three days of hearing and after 20          H
    454                    SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A days of the commencing of final bearing on 13.9.93 by which time the
    arguments had reached an advance stage. In M.Y. Shareef v. The Hon'b/e
    Judges of the High Court of Nagpur, (1955] I. SCR 757 this Court had
    occasion to condemn the attempts for a change of Bench. The ratio of that
    ruling will squarely apply to the facts of this case. To the sanie effect is the
    case in Gujarat Electricity Board v. Atmaram Sungomal Poshani, (1989] 2
B   SCR 357 at 362..No doubt, reasonable apprehension of bias which a
    reasonable person can' entertain may be a good ground for transfer. That
    does not mean a litigant has a right to ask for a change of Bench. A mere
    statement of a party to a proceeding about his entertaining in apprehension
    may be inadequate as the facts of this case make it quite clear. Even in the
c   later affidavits filed, the source of information has not been disclosed. The
    requirement of law is, there must be such a disclosure as seen from T1ie
    Barium Chemicals Ltd. v. 171e Company. Law Board, (1966] Supp. 311 at
    352, Sukhvinder Pal 3ipin Kumar v. State of Punjab, (1982] 2 SCR 31 at 40
    and Smt. Savithramma v. CECIL Naronha, (1988] Supp. 2 SCR 561.
D           The allegations relating to bias have paled into insignificance since
      the learned Judge (S.S. Sodhi,J) against whom bias is alleged is no longer
      in the High Court Punjab and Haryana. Normally, therefore, we would
      have rest content with the dismissal of this appeal as having become really
    . infructuous. But certain unhappy events have taken place in this case which
E     we view with concern. Therefore, we feel obliged to express our mind.

           The appellant is the Chief Minister of a State. Against him allega-
    tions of ma/afides are made by the first respondent. He might have
    strongly resented such allegations quite understandably desired to defend
F   himself. On that score, it cannot be said, a particular Bench cannot hear
    the case. Whatever might have been the reason for the transfer of the writ
    petition from one Bench to· another to make that a ground for allegation
    of bias appears unjustified. May be, either because of a particular practice
    prevailing in a court that the Bench which directed the posting of a case
    should finally hear the matter or because of the change of roasters, the
G   case would have come before a particular Bench. There is nothing to
    indicate that the then Acting Chief Justice S.S. Sodhi evinced an interest
    in hearing this matter or that, he was biased.

           Bias is the second limb of natural justice. Prima facie no one' should
H be a judge in what is to be regarded as 'Sua Causa', whether or not he is
                  BHAJANLAL v. JINDAL STRIPS LID. [MOHAN, J.]                  455

    named as a party. The decision-maker should have no interest by way of A
    gain or detriment in the outcome of a proceeding. Interest may take many
    forms. It may be direct, it may be indirect, it may arise from a personal
    relationship or from a relationship with the subject-matter, from a close
    relationship or from a tenuous one.

           In the case of non-pecuniary bias, as alleged in the instant case,        B
     regard is to be had to be extent and nature of interest. Then alone, the
    judge will be disqualified. In the leading case R v. Sussex Justices, ex p.
    McCarthy, (1924] 1 KB 256, Lori Hewart observed thus :

                 "It is not merely of some importance but is of fundamental          C
              importance that justice should not only be done, but should
              manifestly and undoubtedly be seen to done ... Nothing is to be
              done which creates even a suspicion that there has been an im-
              proper interference with the course of justice."

        · . In R v. Barnsley Licensing Justices, exp. Barnsley and District Licensed D
    Victuallers' Association, (1960] 2 QB 167 Justice Devlin LJ said at pages
    186-87:

                 · "We have not to inquire what impression might be left on the
               minds of the present applicants or on the minds of the public
               generally. We have to satisfy ourselves that there was a real E
              likelihood of bias not merely satisfy ourselves that that was the sort
              of merely satisfy ourselves that that was the sort of impression that
              might reasonably get abroad. The term 'real likelihood of bias' is
              not used, in my opinion, it import the principle in R v. Sussex
              Justices to which Salmon J referred. It is used to show that it is not F
              necessary that actual bias should be proved. It is unnecessary, and,
              indeed might be most undesirable, to investigate the state of mind
              of each individual justice. 'Real likelihood' depends on the impres-
              sion which the court gets from the circumstances in which the
              justices were sitting. Do. they give rise to a real likelihood that the G
              justices might be biased? The court might come to the conclusion
              that there was such a likelihood, without impugning the affidavit
              of a justice that he was not in fact biased. Bias is or may be an
              unconscious thing and a man may honestly say that he was not
              actually biased and did not allow his interest to ·affect his mind,
              although, nevertheless, he may have allowed it unconsciously to do H


'
    456                   SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A            so. The matter must be determined upon the probabilities to be
             inferred from the circumstances in which the justices sit."

          The present day law in England is based on reasonable suspicion.
    Metropolitan Properties Co. (FGC) Ltil. Lannon (1969) 1 QB 577, an
    authority relied on by Mr. Kapil Sibal, lays down :
B
                "In Hannam v. Bradford City Cou11cil, (1970] 2 All ER 690 [1970]
            1 WLR 937 Cross Ll expressed the view, at p. 949, that there is
            really little, if any, difference between the real likelihood of bias
            and reasonable suspicion of bias test :
c               "If a reasonable person who has no knowledge of the matter
            beyond knowledge of the relationship which subsists between some
            members of the tribunal and one of the parties would think there
            might well be bias, then there is in his opinion a real likelihood of
            bias. Of course, someone else with inside knowledge of the char-
D           acters of the members in question might say: 'Although things don't
            look very well, in fact there is no real likelihood of bias.' That,
            however, would be beside the point, because the question is not
            whether the tribunal will in fact be biased, but whether a
            reasonable man with no inside knowledge might well think that it
            might be biased."
E
              ·• This view was accepted in R. v. Livetpool Justices, exp. Topping,
            (1983] 1 All ER 490, (1983) 1 WRLR 119. The Divisional Court
            considered that the correct test to apply is whether there is the
            appearance of bias, rather than whether there is actual bias; and
F           that as to the way in which the test is to be applied the question
            is: Would a reasonable and fair-minded person sitting in Court
            and knowing all the relevant facts have a reasonable suspicion that
            a fair trial for the applicant was not possible? 'Reasonable
            suspicion' seems to have prevailed over 'reasonable likelihood' as
            the test to be applied in determining bias."
G
          It is in the light of this, the mater will have to be examined. So done,
    we hardly find any ground to hold that there could be a reasonable
    suspicion of bias in this case. That is evident from the facts. The case was
    in the list of the Bench headed by S.S. Sodhi, J. from 3.8.92 to 21.10.92.
H   No objection was raised. Arguments were advanced for three days on the
                BHAJANLAL v. JINDAL STRIPS LTD. [MOHAN, J:)                  457

    main writ petition. The application for transfer was taken out on the A
,   ground of alleged bias. By then the matter was coming to a close. It cannot
    be said that there could be any reasonable apprehension of bias which a
    reasonable person could entertain, as rightly urged by Mr. Shanti Bhushan.
    It appears the attempt was to avoid the Bench headed by S.S. Sodhi, J.

          We are unhappy that the appellant should have felt compelled to           B
    seek information as to what transpired within "the judicial fortress" among
    the judicial brethren. Judges should not be dragged in and their names
    mentioned in such matters. Rightly the former Chief Justice Mr. Rama Jois
    refused to allow bis name to be quoted considering it improper to talk
    about any conversation which might have taken place between the Chief           C
    Justice and the other Judges of the High Court in their Chambers.

          Then, we came to G.R. Majitllla, J. a senior judge. On 20.10.92 he
    sought an explanation from the Registrar (Judicial) as to why the case was
    transforred from the Tax Bench to the Bench presided ovor by the then
    Acting Chief Justice, S.S. Sodhi, J. Secondly, on 22.10.92, he wrote a letter   D
    to the Registrar (Judicial) calling for a report.

          This letter, at the direction of the then Acting Chief Justice was
    placed in the file. Again, on 13.9.93 the another letter was written by
    Majithia, J. to the Chief justice.
                                                                                    E
           We have perused these letters. We are of the view that learned judge
    should not have sent these communications. This conduct might incur the
    criticism of transgressing the proprieties of the high office. We cannot but
    express our unhappiness about these letters; whatever might have been the
    compulsions that impelled the learned Judge to do so. We presume that           F
    the learned Judge did so on his own impression of the proprieties of
    procedure adopted by the Registry. But his enquiries and letters are not
    consistent with the restraint expected of the high office.

          Courts are. indeed a storm centre facing the panoply of human
    problems, crowded dockets and unrelenting work schedules. Justice Oliver        G
    Wendell Holmes said :

            "We are quiet here but it is the quiet of a storm centre."

          In Justice Benjamin Cardazo's memorable words, "the great tides and
    currents which engulf the rest of men, do not turn aside in their course,       H
    458                   SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.

A and pass judges by." We should only ijdd that the judges must remain
    unruffled and calm in the midst of contending forces. To recall the words
    of Mr. Justice Frankfurter in Public Utilities Commission of the District of
    Columbia v. Franklin S. Pollak, 343 US 451 at 465-466 (96 Law. Ed. 1068
    at 1079):

B                "The Judicial process demands that a judge move within the
             framework of relevant legal rules and the covenanted modes of
             thought for ascertaining them. He must think dispassionately and
              submerge private feeling on every aspect of a case. There is a good
              deal of shallow talk that the judicial robe does not change the man
C            within it. It does. The fact is that on the whole judges do lay aside
             private views in discharging their judicial functions. This is
             ·achieved through training, professional habits, self-discipline and
             that fortunate alchemy by which men are loyal to the obligation
             with which they are entrusted." (Emphasis supplied )

D         With this we leave.

         Civil· appeal No. 5525/94 arising out S.L.P. (C) No. 16577of1993 and
    Transfer Petition (Civil) No. 880 of 1993 are dismissed. No costs.

    D.K.T.                                                    Appeal dismissed.