Holding

A judge who has already expressed an opinion in a case that has been overruled is disqualified from sitting on a bench hearing any appeal or collateral proceeding in the same matter.

Summary

Six Assistant Computors of the West Bengal Subordinate Labour Service filed a writ petition seeking promotion to higher posts, which a single judge ordered to be effected from 13‑03‑1980. A division bench later modified that order, directing that all promotion cases be considered afresh under the law. The petitioners subsequently filed another writ petition for arrears of salary based on the original promotion date, which the same judge, now sitting on a division bench, dismissed, treating them as promoted from the earlier date but denying arrears. The State appealed, contending that the judge was disqualified from hearing the appeal because he had already expressed his view in the earlier, now overruled, judgment, violating the rule against bias (nemo judex). The Supreme Court held that the judge could not sit on the bench, set aside the division‑bench judgment and dismissed the writ petition, emphasizing the need for an unbiased judiciary and the doctrine that a judge must not rewrite an overruled decision.

Issues considered

Whether a judge who has previously decided a matter as a single judge can sit on a division bench hearing an appeal or collateral proceeding involving the same parties and subject matter after his earlier judgment has been overruled.
Whether the direction for promotion and arrears of salary issued in the earlier judgment remains operative after being set aside by a higher bench.
Whether the judge's participation in the appeal violates the principles of natural justice and the rule against bias (nemo judex in propria causa).

Legislation cited

Constitution of Indias. Article 226, s. Article 309

Subjects

judicial biasnemo judexjudicial obstinacypromotionservice lawnatural justicerule against biasletters patent appealhierarchy of courtswrit petitionArticle 226

Judgment

THE STATE OF WEST BENGAL A
v.
,;_-~
SHIVANAND A PATHAK

FEBRUARY 11, 1998

[S. SAGHIR AHMAD AND G.B. PATTANAIK, JJ.] B
,I.-

Letters Patent (Calcutta High Court)-Letters Patent appeal-
Underlying philosophy-Hierarchy of courts-Writ petitioi:z seeking promotion
to higher post-Single judge holding that promotions to be effected from a
certain date-Writ Appeal by certain other affectedparties~udgment modified
c
directing to consider the cases of the affected parties along with the original
writ petitioners-Promotions made accordingly-Another writ petition filed
by original writ petitioners-Seeking arrears of salary and allowances w.ef
the date they were directed to be promoted by the Single Judge in the earlier
writ petition-Writ petition disposed of directing the authorities to consider D
cases iii accordance with law-Writ appeal preferred-Disposed ofby Division
Bench comprising the judge who decided the earlier writ petition, holding
appellants to have been promoted from the date mentioned in the earlier writ
petition-Held-The judge not competent to have presided over the Bench
since he had expressed his opinion in the earlier writ petition.
E
Practice and Procedure-Procedure under Art 226-Not strictly in
accordance with CPC; to follow principl~s of natural justiCe.

. Administrative /aw-Bias-Meaning and forms-Explained-Judge to
have an unbiased mind during hearing-Judicial functionaries not exempt
F
.,_
~! from the rule of bias-Bias on account of judicial obstinacy-Doctrine of
necessity.

Judicial Propriety-Single judge passing a judgmen~ in a writ petition-
Division Bench overruling the said judgment-Another writ petition filed in G
the same matter-Writ petition disposed of-,-Writ appea/~udgment given by
~ Bench comprising the same earlier judge who had allowed the first writ
'-r
' petition-Held-The judgment constitutes an attempt to revive the directions
of the earlier overruled judgment-A judge not to rewrite his own judgment
sitting in appeal-The judge should have dissociated himselffrom the Bench.
H
811
t:
812 SUPREME COURT REPORTS [1998] l S.C.R.
'C:
A Maxims-Nemo debet esse judex in propria sua causa-Applicability
ef ~---
In the West Bengal Subordinate Labour Sen'ice, 1>romotions to the
posts of Inspector of Wages etc., were made, fifty percent by direct recruitment
and fifty percent by promotion. The Assistant Com1mters were one of the
B feeder posts for promotions ot the said posts. The respondents, who were
working as Assistant Computors filed a writ petition in the Calcutta High
Court seeking promotion to these 1>osts. The writ p~tition came up before a
Single judge (Justice 'A'), wherein it was directed that promotions were to
he given to the writ petitioners with effect from 13.3.80. A writ appeal was
C filed against this judgment by certain other affected parties. The Division
Bench hy its order dated 17-l-i985 modified the Judgment given by the
Single Judge and directed that the appellants as also the writ petitioners
were to be considered for promotion in accordance with law. Complying with
the said directions the State of West Bengal promoted the employees drawn
from all categories including the writ petitioner, by its order dated 16.4.115
D and 6.6.1985. Two of the original writ petitioners filed another writ petition
seeking arrears of salary and allowances with effect from 13-03-1980. The
writ petition was disposed of by Single judge holding that there was. no
ground to interfere in the matter and the authorities would be free to
consider the case of the writ petitioners in accordance with law. An appeal
E was preferred against the said judgment. The said appeal came up for hearing
before a Division Bench presided over by justice" A', who had allowed the
first :writ petition. The Division bench allowed the appeal with the direction
t)Jat the writ appellants have to be treated as promoted with effect from 13-
03-1980, but were not entitled to any areas of salary from that date. It was
further directed that the basic pay in the scale of pay was to be treating
F 13.3.80 as the date of promotion without affecting the seniority and benefits
of persons already promoted. The State of West Bengal challenged the said
judgment in the present appeal.

The ap1>ellants contented that Justice 'A' was not competent to have
G expressed his views sitting in the Division Bench in tbe same matter between
the same parties though initiated on a subsequent writ petition. The direction
issued by the Single Judge had ceased to exist as it was modified by a division
Bench by issuing a fresh direction. It was further contended that the
respondent filed another writ petition seeking enforcement of the old direction
which was already overruled and the Single Judge disposed of the Writ
H Petition holding that the direction of the Division Bench alone was enforceable,
STATE v. SHIVANANDA PATHAK 813
hence the interference was unnecessary by reiterating his earlier view. A

The respondents contented that the direction given by the Division
Bench was innocuous since there was neither a direction for payment of
arrears of salary nor they were to affect the seniority of others.

Allowing the appeal, this court B
HELD: I. It was not competent for justice 'A' to have presided over the
Bench in which the impugned judgment was passed as he had already
expressed his opinion in the earlier writ petition, which was overruled in the
Latters Patent Appeal. He should have disassociated himself from the Bench
in keeping with the high traditions of the institution. 1829-AJ C
2. In the present case there is hardly any difference between the two
judgments passed by Justice 'A'. The Judgment passed by Justice' A' in the
first writ petition in which he had given a direction that the respondents
shall he promoted with effect from 13.3.80 was set aside; he in the subsequent
writ petition gave a declaration that the respondent shall be treated to have D
been promoted with effect from 13.3.80. Such a declaration was not prayed
for and the prayer in the subsequent writ petition was a direction to the State
Government for payment of arrears of salary of the higher post with effect
from 13.3.80. In the first writ petition Justice 'A' commanded "Promote the
respondents with effect from 13.3.80". In the second writ Petition he directed
"Treat the respondent as promoted with effect from 13.3.80." The Judgment E
in the writ appeal arising out of the second writ petition constitutes a crude
attempt to revive the directions passed by Justice 'A' in the first Judgment.
He garnished the Judgment by innocuously providing that arrears would not
--i
l be payable to the respondents herein nor will the respondents affect the
seniority of others. Such garniture cannot conceal the deceptive innocence, F
,.. on a judicial security, the paramount purpose was to rewrite the overruled
~ judgment~ [828-D-G I
'(

-1 2.1. Judicial functionaries have necessarily to have an unflinching
"
character to decide the case with an unbiased mind. Judicial proceedings are
held in open court to ensure transparency. Access to judicial records by way G
of inspection by the litigant or his lawyer and the facility of providing
certified copies of the record are factors, which not only ensures transparency
but also instil and inspire confidence in the impartiality of the court
proceedings. (825-B]

2.2. The proceedings under Art 226 are not conducted strictly H
'
814 SUPREME COURT REPORTS [1998] 1 S.C.R.

A following the.provisions of the Code of Civil Procedure. But are held in
accordance with the procedure devised by the High Court itself under which .h. _
a fair hearing is given before a decision is rendered. Principles of natural
justice are observed strictly in letter and spirit. One of the requirements of
natural justice is that the hearing should be done by a Judge with an
unbiased mind. This principle has also been applied in cases under labour
B laws or service laws, except where th~ cases were covered by the doctrine
of necessity. [825-C; 827-B]

A.K. Kariapak v. Union of India, AIR (1970) SC 150; S.P. Kapoor v.
State of Himachal Pradesh, AIR (1981) SC 2181; Mineral development
C Limited v. State of Bihar, AIR (1960) SC 468 and Financial Commissioner
(Taxation), Punjab v. Harbhajan Singh, [1996) 9 SCC 281, relied on.
2.3. In the present' case a new form of bias namely bias on account of
judicial obstinacy is seen. Bias may be defined as a preconceived opinion or
a pre-disposition on pre-determination to decide a case or an issue in a
particular manner, so much, so that such pre disposition does not leave the
D mind open to conviction. It is a condition of mind, which sways Judgments
and renders the judge unable to exercise impartiality in a particular case.
[825-D-EJ
2.4. Mistakes may be committed by judges bonafide which can be
corrected at the appellant stages. This explains the Philosophy behind·
E hierarchy of courts. A mistake committed by a Judge of the High Court can
be corrected if Letters Paten~ appeal is available. But 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
F rewrite the overruled judgment because the judgment binds the judge also
who has rendered the earlier 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. [825-G-H; 826-A-BJ
G 2.5. An essential requirement of judicial adjudication is that a judge
is impartial and neutral and is in a position to apply his mind objectively to
the facts of the case before him. If he is predisposed or suffers from prejudices ~' -.,,
or has a biased mind, he disqualifies himself from acting as a judge.
[826-C)
H 2.6. Bias is a condition of mind and therefore it is not always possible
-~-

STATEv. SIDVANANDA PATIIAK[S. SAGIRAHMAD, J.] 815
to furnish actual proof of bias. But the courts for this reason, cannot be said A
_..,,/.
to be in a crippled state. The courts, performing judicial functions cannot be
exempted from the rule of bias as the presiding officers of the court have
to hear and decide contentious issues with an unbiased mind. The maxim
Nemo Debet Esse Judex In Propria Sua Causa and the principle "Justice
should not only be done but manifestly be seen to be done" can be legitimately
invoked. (827-E; 828-C] B
- -·
;..-
Manak /al v. Prem Chand, AIR (1957) SC 425 and Gurdip Singh v.
State of Punjab: (1997] 10 SCC 641, relied on.

Metropolitan Properties Co v. Lannon, (1968) W.L.R 815, referred to.
c
R v. Sussex JJ exp. Mc earthy, (1924] l K.B. 256; In Re Linahan, 138
F 2nd 650, referred to.

Judicial Review of Administrative Action, by De Smith, (1980] Edn.,
referred to.
.._ D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4144of1993
Etc.

From the Judgment and Order dated 21.7.92 of the Calcutta High
Court in A. No. 1278 of 1988.
E
Tapas Ray and G.S. Chatterjee for the Appellants.

B. Sen, Dilip Sinha and J.R. Das for Mis. Sinha & Das for the
Respondents.
,
F
., ~
The Judgment 'of the Court was delivered by

S. SAGHffi AHMAD, J. Whether 'judicial obstinacy' can be treated as
a form of "bias" is the question which wc intend to answer in these appeals.
As the answer depends upon the peculiar facts involved in these cases, they
are being examined in a little detail.
G
2. Leave granted in the Special Leave Petition.
'-. ,.-< ;r'
3. These two appeals are directed against the judgment dated 2 lst July,
I
1992 passed by a Division Bench of the Calcutta High Court comprising of
Mr. Justice Ajit Kumai: Sengupta and Mr. Justice Shyamal Kumar Sen. H
816 SUPREME COURT REPORTS [1998) 1 S.C.R.

A 4. Promotion to the posts of Inspector of Minimum Wages, Inspector·
of Trade Unions, other Inspectors, Investigators, Supervisors, etc, constituting i..__.
the West Bengal Subordinate Labour Service, is regulated by Rules made
under Article 309 of the Constitution which were first notified on 25.9.1973
and again on 1.8.1988 with certain modifications. It was provided in the Rules
that fifty per cent of these posts shall be filled up by direct recruitment on
B the basis of the results of the West Bengal Miscellaneous Service Recruitment
Examina~on and the remaining fifty per l:ent by promotion. Originally, under -<.
the 1973 notification, the eligibility for promotion was restricted to the following:

(a) Confirmed Upper Divisfon Clerk of the Labour Directorate and of
the shops and establishments Directorate, Govt. of West Bengal.
c
(b) Confmned Labour Welfare Worker of the Labour Directorate, West
Bengal, who were at least Matriculates or had equivalent qualification
and had rendered not less than IO (ten) years continuous service as
Labour Welfare Workers under the Labour Directorate.

D (c) Confirmed Assistant Computors in the statistical section of the .i..

Labour Directorate, West Bengal.

5. Subsequently, under the 1998 notification, the eligibility was a little
expanded and the promotion was to be made from amongst :

E (a) Confmned Upper Division Clerk of the Labour Directorate, and of
the.. Shops and Establishments Directorate.

(b) Confirmed Labour Welfare Workers of the Labour Directorate,
West Bengal (now placed under the West Bengal Labour Welfare
Board constituted under the West Bengal Labour Welfare Fund Act,
F 1974) Matriculates or have equivalent qualification, who were appointed
to the same post prior to the 1st July, 1976, the date on which the
West Bengal Labour Welfare Board started functioning, and have
rendered not less than 10 (ten) years continuous service in the post
of Labour Welfare Workers under Labour Directorate.
G
(c) Confirmed Assistant Computors in the Statistical Section of the
Labour Directorate.
{ ....
(d) Confmned Upper Division Clerks of the regional offices under the
Labour Directorate and under the Shops and Establishments Directorate,
H Government of West Bengal.
STATEv. SHIVANANDAPATHAK[S. SAGIRAHMAD,J.) 817
6. Confirmed Assistant computors, thus, constituted, under both the A
notifications, l()ne of the feeder posts for promotion to the posts in the
Subordinate Labour Service.

7. Six of such Assistant Computers (hereinafter referred to as
Respondents) filed a Writ Petition (C.O. No. 6584(W) of 1984) in the Calcutta
High Court, setting out therein that although they were eligible for promotion B
to the posts of Inspector, Investigator and Supervisor etc. of the West Bengal
Subordinate Labour Service, the respondents of that Writ Petition, namely, the
State of West Bengal, Commissioner of Labour and the .Joint Labour
Commissioner (Statistics), had promoted only 'the confirmed Upper Division
Assistants' to tl1ose posts in 1978 and their claim for promotion was completely C
ignore~. It was also stated that although 48 vacancies were available in the
Subordinate Labour Service in the Labour Commissioner's Office under the
Labour Directorate, the respondents intended to fill up those vacancies by
promoting only the Upper Division Clerks and not the persons from other
feeder posts, including the Assistant Computors. It was alleged that although
only six permanent Upper Division Clerks were available, the respondents, D
namely, the State Govt., Labour Commissioner, etc. of that Writ Petition
intended to fill up the higher posts by promoting the temporary Upper Division
Clerks and not tl1e Assistant Computors who being eligible for promotion to
the posts under the West Bengal Subordinate Labour Service were entitled
to be considered for such promotion. Consequently, they prayed for tlle
following reliefs:
E

"(a) for a writ of Mandamus commanding tlle Respondents to promote
the petitioners to the next higher posts, namely, Inspectors,
Investigators and Supervisors etc. in the West Bengal Subordinate.
' Labour Service under the Labour Directorate,. Goveimn,\!nt of F .
... West Bengal and-also furtlier commanding the Respondents not
to promote the temporary and/or non-confirmed Upper Division
Clerks to tlle said posts;
(b) for a Writ of Certiorari directing tlle Respondents to produce the
records of this case to tllis Hon 'ble Court, so tllat conscionable G
justice may be rendered;
(c) A Rule in terms of prayers (a) and (b);
(d) An interim order of injunction restraining tlle Respondents and/
or tlleir agents from giving any promotion· to tlle said higher
posts namely Inspector, Investigator, Supervisor etc, in the West H
-t··
818 SUPREME COURT REPORTS [1998] 1 S.C.R

· Bengal Subordinate Labour Service under the Labour Directorate, I
A
Government of West Bengal till the disposal of the Rule; ~

(e) Any other order and/or orders as your Lordships may deem fit
and proper."

8. This Writ Petition came up for hearing before Mr. Justice Ajit Kumar
B Sengupta (since retired), who, by judgment dated 21.8.1984, allowed it with
the following operative order :

"In my judgment this is a clear case of arbitrary and discriminatory
a~tion on the part of the respondents in depriving at least 9 persons
from their legitimate promotion in the West Bengal Subordinate Labour
c Service. In the result, this application must be allowed. The decision
and/or the orders of promotion, if made on the basis of the approved
lists, are set aside. The respondents are directed to give promotion the
West Bengal Subof4inate Labour Service on the basis of the integrated
Gradation List (Flag "A" in the file) and shall give promotion to the
D Assistant Computors including the writ petitioners in the West Bengal
Subordinate Labour Service. They are directed to issue the orders of
promotion forthwith in terms of this order. The respondents shall give
promotion to the Assistant Computor including the writ petitioners to
the Subordinate Labour Service with effect from 13th March, 1980
when 29 Upper Division Clerks were promoted ignoring the claim of
E the Assistant Computors according to the s;uority determined on the
basis of the said Rules.
Let this order be carried out within two weeks from the date of
communication of this order."

F 9. The direction to promote the present respondents, namely, the
Assistant ·computors to the Subordinate Labour Service with effect from
13.3.1980 was obviously given for the reason that it came out during the
course of the proceedings that the Government, in the meantime, had filled
up 31 posts on 13.3.1980 by promoting 29 Upper Division Clerks and 2 Labour
G Welfare Workers. By another order passed on the same date, namely on
13.3.1980, five promotions.more (two Assistant Computors and 3 Labour
Welfare Workers) were made.

10. This judgment was challenged by a number of affected employees
(about 32 employees), who filed an appeal (F.M.A.T. No. 3213of1984) before
H the Division Bench and the latter, namely, the Division Bench, by its judgment
STATEv. SIDVANANDAPATHAK[S. SAGIRAHMAD, J.] 819
and order dated 17.1.1985, allowed the appeal by the following order: A
· "After hearing the learned Advocates of the parties and after
considering the facts and circumstances of the case,. we modify the
impugned order of the learned Trial Judge and direct that the authorities
concerned shall consider the cases of promotion to the West Bengal
Subordinate Labour Service of the appellants as also of the writ B
petitioners and the added respondents in accordance with law and the
prescribed rules including the appointment rules, within three months
from date. '

It is made clear that we have not expressed our opinion on the
merits of the respective cases of the parties. -C

This order virtually disposes of the appeal. The appeal is treated
as on day's list and both the appeal and the application are disposed
of as above. There will be no order for costs."

11. By this order, the direction passed by Mr. Justice Ajit Kumar Sengupta D
for promotion of Assistant Computors, and that too with eff~ct from 13.3.1980, •
was substituted by a fresh direction that the cases of Assistant Computers
as also those of others would be considered in accordance with law and the
prescribed rules, including the appointment rules.

12. In compliance of this direction, the State of West Bengal and other E
appellants before us, after due consideration, promoted 40 employees drawn
from all Llie three categories of feeder posts, including those, namely, the
present respondents, who had filed Writ Petition (C.O. No. 6584of1984), by
two orders. (i) Order No. 1187 G.E. dated 16.4.1985 and (ii) Order No. 1832 G.E.
I
dated 6.6.1985 to various posts in the Subordinate Labour Service.
F
13. Two years later, the same persons, namely, the present respondents,'
except Smt. Shyamali Ghatak (nee Chakraborty), who had earlier fiied Writ
Petition (C.O. No. 6584 of 1984), filed another Writ Petition (registered as
Matter No. 1449 of 1987) in the Calcutta High Court, praying that they may
be paid arrears of salary and allowances with effect from 13.3.1980 in terms G
of the judgment and order 'dated 21. 8.1984 passed by Mr. Justice Ajit Kumar
Sengupta. This Writ Petition was disposed of by Mr. Justice Prabir Kumar ·
Majumdar by his judgment and order dated 22.4.1988 by observing, inter alia,
as under :"

' "I have considered the respective submi$ions of the parties. It appears H
820 SUPREME COURT REPORTS [1998] l S.C.R.

A that the order of the learned trial judge made on the earlier writ
petition dated August 24, 1984 was modified and it was observed by
the court of appeal that :

'After hearing the learned advocates of the parties and after
considering the facts and circumstances of the case, we modify
B ·the impugned order of the learned Trial Judge and direct that the
authorities concerned shall consider the cases of the promotion
to the West Bengal Subordinate Labour Services of the appellants
as also of the Writ Petitioners and the added respondents in
accordance with law and the prescribed rules including the
appointment rules within the three months from date.'
c
Therefore, it was a direction of the court of appeal upon the
concerned authorities to consider the cases of the appellants, writ
petitioners as also the added respondents in accordance with law and
the prescribed Rules including the appointment rules. Therefore, it
appear to me that whatever entitlement, so far as the writ petitioners
D are concerned, is there in the relevant rules, the petitioners will get
it and their claim to tl1e benefits as also seniority will be considered
accordingly and in complying such autl10rities concerned will comply
with tl1e direction of the court of appeal as also the learned trial court
so far n1odified by tl1e Court of Appeal.
E In the facts m1d circumstances of the case, I do not see any
ground to interfere in this case and the authorities will be free to
consider tl1e case of the writ petitioners as· also other persons
concerned witll tile matter in accordance witll tile directions contained
in tlle order of the appeal court in F.M.A.T. No. 3213of1984.
F The' writ petition is tllus disposed of."

14. This judgment was challenged before tile Division Bench which, at
tile time of hearii1g, incidentally, comprised of Mr. Justice Ajit Kumar Sengupta
and Mr. Justice Shyamal Kumar Sen and tlley, by tlleir impugned judgment
G dated 21.7.1992, allowed the appeal witll tl1e direction tllat tile respondents
(appellants before us) shall treat the Assistant Computors to have been
promoted to the Subordinate Labour Service with effect from 13.3.1980. It was
further directed that altllough they will not be entitled to any arrears of salary
with effect from tllat date, their basic pay in tile scale of pay would be fixed
by treating 13tll March, 1980 as the date of tlleir promotion witllout, however,
H affecting tile seniority and ~er benefits of tile persons already promoted to
STATEv. SIDVANANDAPATHAK[S. SAGIRAHMAD,J.] 821

the Subordinate Labour Service. The pay so fixed, was made payable to. them A
with·effect from July, 1992.

15. It is this judgment which is challenged before us in both the appeals.

16. Learned counsel appearing on behalf of State of West Bengal as
also the counsel appearing on behalf of the appellants in the connected B
~
appeal have assailed the judgment not only on merits but also on the technical
plea that Mr. justice Ajit Kumar Sengupta having expressed his views when
he had decided, as a Single-Judge, the first Writ Petition, namely C.O. No.
6584(W) of 1984, should not have sat in the Division Bench to hear the appeal
in tl1e same matter between the same parties though initiated on a subsequent
Writ Petition. It is contended that altl1ough the direction of Mr. Justice Ajit
c
Kumar Sengupta to tl1e effect that tl1e Assistant computors (some of the
respondents herein) shall be promoted with effect from 13.3.1980, had ceased
to exist as the appeal against the judgment, in which this directfon was
contained, was disposed of by the Division Bench by issuing a fresh directioi;.,
the respondents herein, filed another Writ Petition seeking enforcement of the D
old direction of Mr: Justice Ajit Kumar Sengupta by requiring the State
Government to pay to them, the arrears of salary of the higher post with effect
from that date, namely, 13.3.1980. It is contended that the learned Single-Judge
having disposed of this Writ Petition by observing that the direction issued
by the Division Bench alone was enforceable, no interference was called for E
in the matter but .Mr. Justice Ajit Kumar Sengupta reiterated his earlier view
and held ~at the respondents shall be treated to have been promoted to tl1e
Subordinate Labour Service with effect from 13 .3 .l 980.

l 7. Learned counsel for the. respondents contended that the direction
of the subsequent Division Bench, presided over by Mr. Justice Ajit Kumar F
r-·
Sengupta, tl1at the respondents shall be treated to have been promoted with
effect from 13.3.1980 was innocuous inasmuch as neither the arrears of salary
with effect from that date was to be paid nor were they to affect the seniority
of persons already promoted to tl1e Subordinate Labour Service. In this
situation, it i ~ contended, it would not be proper to interfere with the impugned
G
judgment.

-·}- 18. A copy of the Writ Petition filed before tl1e Calcutta High Court by
the respondents a second tinie (being Matter No. 1449 of 1987) has been filed
before us. In order to indicate the real controversy involved in that Writ
Petition, the relevant paragraphs of that Writ Petitions are reprod~ced below: H
822 SUPREME COURT REPORTS [1998] l S.C.R.

A "4. Your petitioner state that against the aforesaid illegalities namely
tl1e denial of promotion seniority and otl1er benefits to the petitioners
as prescribed in law, a writ application was filed on behalf of tl1e
petitioners before this Hon'ble Court which was numbered as C.0.
6584J(W)/84. After hearing oftl1eparties tl1e Hon'ble Mr. Justice A.K.
Sen Gupta was pleased to allow the said application of the petitioners
B directijlg the autl1orities to give promotion on tl1e basis of the seniority.
His Lordship was further pleased to direct the authorities to give
-.: .
promotion to tl1e Writ Petitioners to the sub-ordinate Labour service
w.e.f. l3tli March, 1980. His Lordship was further pleased to direct the
authorities to give promotion to the petitioners to the West Bengal
' .
c Sub-Ordinate Labour Service forthwith. But against the said Judgment
of His Lordship Mr. A.K. Sen Gupta and Appeal having tlie Tender
No. FMAT 3213 was preferred before tltls Hon'ble Court. The Division
Bench after hearing the parties was pleased to dispose of the said
appeal directing tllc Respondent autllorities to follow and or to give
promotions in accordance witll the above prescribed rules. Therefore
D the judgment and the order of the Trial Judge stood upheld.
Accordingly, pursuant to the judgment of the Trial Court, autllorities
promoted tlle Writ Petitioners on 17 .4.85 to tlle posts of Investigators/
Inspectors under West Bengal Sub-ordinate Labour Services, Labour
Directorate, Government of West Bengal and tlle petitioners have
E been posted in different places in the said posts where tlley are now
served. A copy of the Judgment in C.O. No. 6584 (W) I 84 passed by
tlie Hon'ble Mr. Justice A.K. Sengupta annexed herewitll and along
with tl1e order passed by tlie Division Bench in FMAT 3213/84 and
marked as Annexure-"A''.

F 5. Your petitioners state tllat now tliey have been promoted in tlle
West Bengal Sub-ordinate Labour Services, but as per tl1e order of
tllis Hon 'ble Court tliey are deemed to be promoted and or in service
since 13th March, 1980. Accordingly, tlie petitioners are entitled to get
tlie seniority and also tlle monetary benefits of West Bengal Sub-
ordinate Labour Services witll retrospective effect from 13th March,
G 1980.

6. Your petitioners state that there has been arrear dues to tlle
petitioners since Bili march, 1980. The petitioners made several
-1'.
·-
representations before tlle autliorities for tlle payment of tlle said
H arrear dues but the Respondent autllorities have not paid tlle same to
STATEv. SIDVANANDA PATHAK(S.SAGIRAHMAD,J.] 823

the petitioners. On 12.12.86, the petitioners made a written A
representation to the Respondent No. I along with the statement of
arrear dues praying immediate payment of the said arrear dues from
13.3.80 to 16.4.85 and in that letter demanding justice. The petitioners
also pointed out that for the above non-payment of the arrear dues,
the petitioners were facing acute financial troubles. But uptil now the
authorities have done nothing for the grant and or payment of the B
said dues from 13th March, 1980 to 16.4.85 to the petitioners. A copy
of the said representation dated 12.12.86 along with the statements of
the said arrear dues are collectively marked as Annexure "B" and Bl
to this application.

7. Your petitioners state that the authorities denied equal opportunities C
of promotion to them. The authorities gave promotions to West Bengal
Sub-ordinate Labour Services only from the Upper Division Clerks,
even some of these clerks were not confirmed. Thus the authorities
denied Computer Assistants and labour Welfare workers of the Labour
Department equal promotion seniority and other benefits for a long D
time. Thus the whole activities regarding promotion was totally illegal
and of malafide. That is why the Hon'ble Mr. Justice AK. Sengupta
in C.O. p584(W)/84 was pleased to direct that the petitioners whose
claim for promotion accrued long ago should be deemed to be
promoted to West Bengal Sub-ordinate Labour Service on and from
13th March, 1980, because on that date many junior persons and even E
unconfirmed Upper Division Clerks were promoted to the Labour
service. But the petitioners weie illegally deprived ef the said promotion
and or seniority. Thus the petitioners are entitled to the arrear financial
benefits and Seniority on and from 13th March, 1980.

8. Your petitioners state that they made series of representations F
before the authorities for the promotion and pfyrnent of their arrear
benefits since 13th March, 1980, but the authorities had not yet paid
the said arrear. Thus the petitioners have been put to unnecessary
financial hardships by the aforesaid non payment of arrear dues."

19. The following prayer was made in the Writ Petition:
G

"IO. Your petitioners humbly state and submit that the authorities
illegally withheld their promotion for a long time but only pursuant to
the direction and or order of this Hon'ble Court they got promotion
in the West Bengal Sub-ordinate Labour service which has been H
824 SUPREME COURT REPORTS (1998] l S.C.R.

A illegally withheld for a long time. Therefore, the direction of this
Hon'ble Court that the petitioners should be deemed to be promoted
since 13th March, 1980 should be complied with by the authorities by
paying all arrear benefits and or dues to the West Bengal Sub-ordinate
'
Labour Service to the petitioners immediately, otherwise they will
suffer irreparable loss and or injury."
B
20. The real question which was, therefore, involved in that Writ Petition
was whether the direction given by Mr. Justice Ajit Kumar Sengupta on
21.8.1984 while disposing of the earlier Writ Petition (C.0. No. 6584/(W) /84),
, was in existence or had ceased to be an operative direction after t11e disposal
C ofF.M.A.T. No. 3213 of 1984 by a Division Bench on 17.1.1985. The ultimate
order passed by the Division Bench in that appeal has already been extracted
in t11e earlier part Of the judgment which would show that the direction that
in t11e first writ p'etition the respondents shall be promoted wit11 effect from
13tli March, 1980 was set aside and was substituted by a fresh direction that
D tlie cause of tlie respondents along with oilier eligible candidates for promotion ;...
to tlie Subordinate Labour Service shall be considered in accordance witli law
and tlie prescribed rules including the appointment rules. It was in pursuance
of tliis direction tliat tlie State Government considered the matter of promotion
and by its order dated 16.4.1985, it made promotions of tlie eligible candidates
drawn from all tlie tlrree sources (including t11e respondents who had filed
E Writ Petition (C.O. No. 6584/(W)/84), to various posts in tlie Sub-ordinate
Labour Service. This order does not indicate tliat tlie respondents were
promoted witli effect from 13th March, 1980; may be tliis was not indicated
as that direction had been set aside in appeal by tlie Division Bench.

F 21. When the respondents claimed arrears of salary with effect from
13th March, 1980 in pursuance of tlie direction issued by Mr. Justice Ajit
Kumar Sengupta tlrrough a fresh petition (Matter No. 1449 of 1987) filed in
tlie Calcutta High Court, tlle learned Single Judge did not grant tlle relief and
instead observed tliat since tlle direction issued by Mr. Justice Ajit Kumar
Sengupta was modified, it was for tlie State Government to consider t11eir
G claims in accordance witli the Rules in terms of directions of tlle Division
Bench (Court of Appeal).

22. An appeal against this judgment was disposed of by a Division
Bench which included Mr. Justice Ajit Kumar Sengupta. The question which,
H tllerefore, arises is whetller Mr. Justice Ajit Kumar Sengupta could sit in tlie
STATE v. SHlVANANDAPATI-IAK[S. SAGIRAI-IMAD, J.] 825
Division Bench to decide the appeal against that judgment? A
23. All judicial functionaries have necessarily to have an unflinching
character to decide a case with an unbiased mind. Judicial proceedings are
held. in open court to ensure transparency. Access to judicial record by way
·of inspection by the litigant or his lawyer and the facility of providing certified
copies of that record are factors which not only ensure transparency but also B
instil and inspire confidence in the impartiality of the court proceedings.

24. Unlike suits, proceedings under Article 226 of the Constitution are
not conducted strictly following the provisions contained in the Code of Civil
Procedure but are held in accordance with the Procedure devised by tl1e High C
Court itself under which a fair hearing is provided to the parties concerned
before a decision is rendered. In other words, principles of natural justice are
observed strictly in letter and spirit. One of the requirements of Natural
Justice is that tile hearirig should be done by.a Judge with an unbiased mind.

25. Bias may be defined as a pre~conceiyed opinion or a pre-disposition D
or pre-detemlination to .decide a case or an issue in a particular manner, so
much so tilat such pre-disposition does not leave the mind open to convietion.
It is, in fact, a condition of mind, which sways judgments and renders the
Judge unable to exercise impartially in a partic.ular case.

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

· 27. Judges, unfortunately, are not infallible. As human beings, tiley can F
commit mistakes even in the best of tileir Judgments reflective of their hard
labour, impartial tilinking and objective assessment of tlle problem put before
tllem. In tlle matter of interpretation of statutory provisions of while assessing
the evidence in a particular case or deciding questions . of law or facts,
mistakes may be committed bona fide which are corrected at tile appellate G
stage. This eiqilains the philosophy behind the hierarchy of courts. Such a
mistake can be committed even by a Judge of the High Court which are
corrected in tlle Letters Patent Appeal, if available.

28. If a judgment is oyer-ruled by tile higher court, the judicial discipline
required that the Judge whose judgment is over-ruled must submit to tilat H
826 SUPREME COURT REPORTS (1998) 1 S.C.R.

A judgment. He cannot, in the same proceedings or in collateral proceedings
between the same parties, re-mite the over-ruled judgment. Even if it was a
decision on a pure question of law which came to be over-ruled, 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 over-ruled that judgment,
B 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.

C 29. As pointed out earlier, an essential requirement of judicial adjudication
is that the Judge is impartial and neutral and is in a position to apply his mind
objectively to the facts of the case put up before him. If he is pre-disposed
or suffers from prejudices or has a biased mind, he disqualifies himself from
acting as a Judge. But Frank, J. of the United States in In re Linahan, 138
D F. 2nd 650 says:-
" If, however, 'bias' and 'partiality' be defmed to mean the total absence
of preconceptions in the mind of the judge, then no one has ever had
a fair trial and no one will. The human mind, even, at infancy, is no
blank piece of paper. •We are born with predispositions.... Much harm
E is done by the myth that, merely by.... taking the oath of office as a
judge, a man ceases to be human and strips himself of all predilections,
becomes a passionless thinking machine."

(See also Griffith and Street, Principles of Administrative Law ( 1973
Edn.) 155; Judicial Review of Administrative Action by de Smith (1980
F Edn.) 272; II Administrative Law Treatise by Davis (1958 Edn.) 130.)

30. These remarks imply a distinction between pre-judging of facts
specifically relating to a party, as against pre-conceptions or pre-dispositions
about general questions of law, policy or discretion. The implication is that
though in the former case, a Judge would disqualify himself, in the latter case,
G he may not. But this question does not arise here and is left as it is.

31. This Court has already, innumerable times, beginning with its classic ~-
decision in A.K. Karaipak v. Union of India, AIR (1970) SC 150, laid down
the need of "fair play" or "fair hearing" in quasi-judicial and administrative
H matters. The hearing has to be by a person sitting with an unbiased mind.
STATE v. SHIVANANDA PATHAK(S. SAGIRAHMAD, J.] 827
To the same effect is the decision in S.P. Kapoor v. State of Himachal A
...,...~ Pradesh, AIR (1981) SC 2181. In an earlier decision in Mineral Development
. Limited v. State of Bihar, AIR (l 960) SC 468, it was held that the Revenue
Minister, who had cancelled the petitioner's licence or the lease of certain
land, could not have taken part in the proceedings for cancellation of licence
as there was political rivalry between the petitioner and the Minister, who had B
also filed a criminal case against the petitioner. This principle has also been
applied in cases under labour laws or service laws, except where the cases
were covered by the doctrine of necessity. In Financial commissioner
(Faxation), Punjab v. Harbhajan Singh, (1996] 9 SCC 281, the settlement
Commissioner was held to be not competent to sit over his own earlier order
passed as Settlement Officer under the Displaced Persons (Compensation & C
Rehabilitation) Act, 1954. The maxim Nemo Debet Esse Judex In Propria Sua
Causa was invoked in Gurdip Singh v. State ofPunjab, (1997] IO SCC 641.

32. The above maxim as also the other principle based on the most
frequently quoted dictum of Lord Hewart C.J. in R. v. Sussex JJ., ex p. Mc D
Carthy (1924) 1 K.B. 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",

constitute the well-recognised Rule Against Bias.
E
33. Bias, as pointed out earlier, it a condition of mind and, therefore, it
may not always be possible to furnish actual proof of bias. But the courts
for this reason, cannot be said to be in a crippled state. There are many ways
to discover bias; for example, by evaluating the facts and circumstances of
the case or applying the tests of "real likelihood of bias" or "reasonable F
suspicion of bias." de Smith in Judicial Review of Administrative Action, 1980
Edn., 262, 264, has eiqilained that "reasonable suspicion" test looks mainly to
outward appearances while "real likelihood" test focuses on the court's own
evaluation of the probabilities.

34. In Metropolitan Properties Co. v. Lannon, (1968) W.L.R. 815, it was G
observed "whether there was a real likelihood of bias or not has to be
~ )-- ascertained with reference to right minded persons; whether they would
consider that there was a real likelihood of bias". Almost the same test has
also been applied here in an old decision, namely, in Manak Lal v. Prem
Chand, AIR (1957) SC 425. In that case, although the Court found that H
828 SUPREME COURT REPORTS [1998] l S.C.R.

A Chainnan of the Bar Council Tribunal, appointed by the chief Justice of t11e L
Rajasthan High Court, to enquire into the misconduct of manak Lal, an
advocate, on the complaint of one Prem chand, was not biased towards him,
it was held that he should not have presided over the proceedings to give
effect to the salutory principle that justice should not only be done, it should
B also be seen to be done in view of the fact that the Chairman, who,
undoubtedly, was a senior advocate and an ex-Advocate General, had, at one
time, represented Prem Chand :n some case. These principles have had their
evolution in the field of Administrative law but the Courts performing judicial
functions only cannot be excepted from the rule of bias as the Presiding
Officers of the Court have to hear and decide contentious issues with an
C unbiased mind. the maxim Nemo Debet Esse Judex Jn Propria Sua Causa and
the principle "Justice should not only be done but should manifestly be seen
to be done" can be legitimately invoked in their cases.

35. Applying these principles in the instant case, it will be seen that
D although the judgment passed by Mr. Justice Ajit Kumar Sengupta in the first
Writ Petition in which he had given a direction that the respondents shall be
promoted with effect from 13.3.1980 was set aside,. he (Mr. Justice Ajit Kumar
Sengupta), in the subsequent writ Petition between the same parties, gave a
declaration that the respondents shall be treated to have been promoted with
effect from 13.3.1980. Significantly, such a declaration was not prayed for and
E what was prayed in the subsequent Writ Petition was a direction to the State
Government to pay arrears of salary of the higher post with effect from
13.3.1980. To put it differently, in the first Writ Petition, Mr. Justice Ajit Kumar
Sengupta commanded "Promote the respondents with effect from 13.3.1980";
in the second .Writ Petition, he directed "Treat the respondents as promoted '..-,•

F with effect from 13.3.1980". There is hardly any difference between the two
judgments. In fact, the second Writ Petition constitutes a crude attempt to
revive the directions passed by Mr. Justice Ajit Kumar Sengupta in the first
judgment and, curiously, Mr. Justice Ajit Kumar Sengupta, sitting in the
Division Bench, wrote, a second time, a judgment which was already over-
ruled. He garnished tl1e judgment by innocuously providing that arrears
G would not be payable to the respondents nor will the respondents affect the
seniority of others. But the garniture cannot conceal the deceptive innocence
as it is obvious; on a judicial scrutiny, tllat paramount purpose was to re-write
tile over-ruled judgment.

H 36. In view of these facts, we are constrained to observe that it was not ·
STA TE v. SHIVA NANDA PATHAK [S. SAG IR AHMAD, J.] 829
competent for Mr. Justice Ajit Kumar Sengupta to have presided over the A
'
Bench in which the impugned judgment was passed as he had a\ready
expressed his opinion in the earlier writ petition which was over-ruletl. He ·
should have disassociated himself from that Bench in keeping with the high
traditions of the institution so as to give effect to the rule that "justice should
not only be done, it should manifestly be seen to have been done" apart from B
sitting in appeal, though collaterally, over his own judgment.

37. The appeals are consequently allowed. The judgment and order
dated 21.7.1992 passed by the Division Bench of the Calcutta High Court is
set aside and the Writ Petition (Matter No. 1449of1987) is dismissed without
any order as to costs. c
S.N. Appeals allowed.