Meghalaya

StateCommission

MA/01/2018

Ms M.C.Marak - Complainant(s)

Versus

Manager, Nikton Ford & Others - Opp.Party(s)

Mr S.Jindal

21 Dec 2018

ORDER

Mr. S. Marpan, learned counsel for Opposite Party No. 1 in C.C. No. 1 of 2018 had filed the instant Misc Case in C.C. No. 1 of 2018 which was heard on 21.12.2018 and argued by Mr. S. Marpan, the Applicant, and Mr. S. Jindal, learned counsel for the Opposite Party. Vide our order of the same date, we had stated that a detailed order would be passed in due course. We, accordingly, pass this detailed order today.

2. The short application states that "it has come to the knowledge of the counsel for the Opposite Party No. 1 that the counsel for the Complainant (Mr. S.Jindal) had represented and defended your Honour (Mr. Ramesh Bawri) in numerous legal proceedings before various courts / forums" and that "the counsel for the Opposite Party No.1 humbly submit(s) that he apprehends that there is every likelihood that prejudice may cause to the Opposite Parties in case the instant case is taken up your Honour (Mr. Ramesh Bawri)." The Applicant prayed that the Consumer Complaint No. 1 of 2018 be placed "before Members other than your Honour (Mr. Ramesh Bawri) of this Hon'ble Commission."

3. During the hearing, Shri Marpan reiterated the contentions made in his Application and had nothing more to add. On the other hand, Shri S.Jindal refuted the validity of any such charge or apprehension and submitted that the only prohibition for an Advocate from appearing before a Court, Tribunal or Authority is contained in the Bar  Council Of  India  Rules (Part - VI) - Chapter - II, Section I, Para 6, relating to Standards of Professional Conduct and Etiquette, which read as follows:

"An advocate shall not enter appearance, act, plead or practise in any way before a court, Tribunal or Authority mentioned in Section 30 of the Act, if the sole or any member thereof is related to the advocate as father, grandfather, son, grand-son, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law."

He therefore submitted that an Advocate cannot appear before a particular Bench ONLY if they are RELATED in the manner stated above; this 'relation' does not extend to a Advocate-Client relation. If it were so, the Bar Council would have certainly stated so in the Rules. It is also submitted that these rules have been framed under section 49 (1)(c) of the Advocates Act, 1961, which reads thus:

49. General power of the Bar Council of India to make rules:

(1) The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe —  ...

(c) the standard of professional conduct and etiquette to be observed by advocates;

Further that, besides merely stating that the Complainant's counsel had represented the Presiding Officer, the applicant has stated and shown nothing as to how there is even any probability of prejudice, much less that there is a real danger of prejudice to him.

4. This Bench would like to clarify at the outset that it has neither any affinity nor antipathy in hearing the instant Complaint. However, as the judicial business undertaken by this Bench casts a solemn duty upon us to consider the instant matter, we deem it our responsibility to adjudicate upon the legality and propriety of the prayer for recusal in accordance with law. Hence, we have undertaken the unsavoury exercise of adjudicating upon the plea of 'likelihood of prejudice' on which the prayer for recusal is founded.

5. Having perused the Application and heard the respective Counsels, we have given our deep consideration to the matter and are of the view that the ground mentioned in the application does not preclude the appearance of the learned counsel for the Complainant before this Bench or that there is any likelihood of prejudice to the applicant, as alleged, for the reasons that follow.

6. We firstly notice that this application has been filed  by the Counsel for the Opposite Party No.1 accompanied by an affidavit sworn by him in person and not by the Opposite Party. We are not sure whether O.P. No. 1 is even aware of the filing of this application.

7. Secondly, an application such as this ought to have been filed at the earliest. However, the records show that the Complaint was filed on 6.4.2018 and thereafter Counsel for O.P. No. 1 has appeared before this very Bench on as many as 4 (four) occasions over a period of more than 6 months on 4.5.2018, 6.7.2018, 10.8.2018 and 7.9.2018 without even a whisper of objection to hearing by this Bench.

8. Now, in order to determine whether the ground raised by the Applicant constitutes good grounds for recusal by this Bench we consider it imperative to seek light from the illuminating pronouncements and ratios laid down in the judgments of the Hon'ble Supreme Court and, in their light, examine the plea of recusal in an objective and dispassionate manner, on merits. Relevant extracts from some of the leading judgments in this regard are quoted below, with underlining and emphasis added by us, wherever deemed necessary. We may also mention here that the Applicant / Counsel could not cite a single precedent in support of the ground raised by him.

 

a) Gurucharan Dass Chadha vs State Of Rajasthan (AIR 1966 SC 1418) Para 13 - "It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained, but must appear to the Court to be a reasonable apprehension."

 

b) Ashok Kumar Yadav vs State Of Haryana (AIR 1987 SC 454) Para 16 - "The likelihood of bias may arise on account of proprietory interest or on account of personal reasons, such as, hostility to one party or personal friendship or family relationship with the other. Where reasonable likelihood of bias is alleged on the ground of relationship, the question would always be as to how close is the degree of relationship or in other words, is the nearness of relationship so great as to give rise to reasonable apprehension of bias on the part of the authority making the selection."

 

c) We may refer to the decision of the Hon'ble Delhi High Court dated 4th October, 2007 in Crl.M.No.9955/2007 in W.P.(Crl.) No.796/2007 (Court on its own Motion v. State) where it held that "The path of recusal is very often a convenient and a soft option. This is especially so since a Judge really has no vested interest in doing a particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favour affection or ill will while upholding the Constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting / Bench preference or brow-beating the Court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office."

 

d) The aforementioned judgment was approved by the Hon'ble Apex Court in R.K.Anand vs Registrar, Delhi High Court [(2009) 8 SCC 106] vide Para 159 - "The above passage, in our view, correctly sums up what should be the court's response in the face of a request for recusal made with the intent to intimidate the court or to get better of an "inconvenient" Judge or to obfuscate the issues or to cause obstruction and delay the proceedings or in any other way frustrate or obstruct the course of justice."

 

e) Justice P.D. Dinakaran vs Hon'ble Judges Inquiry Committee (AIR 2011 SC 3711) Para 43 - "The principles which emerge from the aforesaid decisions are that no man can be a Judge in his own cause and justice should not only be done, but manifestly be seen to be done. Scales should not only be held even but it must not be seen to be inclined. A person having interest in the subject matter of cause is precluded from acting as a Judge. To disqualify a person from adjudicating on the ground of interest in the subject matter of lis, the test of real likelihood of the bias is to be applied. In other words, one has to enquire as to whether there is real danger of bias on the part of the person against whom such apprehension is expressed in the sense that he might favour or disfavour a party. In each case, the Court has to consider whether a fair minded and informed person, having considered all the facts would reasonably apprehend that the Judge would not act impartially. To put it differently, the test would be whether a reasonably intelligent man fully apprised of all the facts would have a serious apprehension of bias. In cases of non-pecuniary bias, the `real likelihood' test has been preferred over the `reasonable suspicion' test and the Courts have consistently held that in deciding the question of bias one has to take into consideration human probabilities and ordinary course of human conduct."

f) N.K.Bajpai vs Union Of India (AIR 2012 SC 1310) Para 35 - "Bias must be shown to be present. Probability of bias, possibility of bias and reasonable suspicion that bias might have affected the decision are terms of different connotations. They broadly fall under two categories, i.e., suspicion of bias and likelihood of bias. Likelihood of bias would be the possibility of bias and bias which can be shown to be present, while suspicion of bias would be the probability or reasonable suspicion of bias. The former lead to vitiation of action, while the latter could hardly be the foundation for further examination of action, with reference to the facts and circumstances of a given case. The correct test would be to examine whether there appears to be a real danger of bias or whether there is only a probability or even a preponderance of probability of such bias, in the circumstances of a given case. If it falls in the prior category, the decision would attract judicial castecism but if it falls in the latter, it would hardly effect the decision, much less adversely."

 

g) Supreme Court Advocates-on-Record Association vs Union of India (Writ Petition (Civil) No. 13 OF 2015 decided on 16 October, 2015) The law on recusal is authoritatively laid down in this pronouncement of the Supreme Court. Hon'ble Justice J.S.Khehar held in Para 18 that "In my considered view, the prayer for my recusal is not well founded. If I were to accede to the prayer for my recusal, I would be initiating a wrong practice, and laying down a wrong precedent. A Judge may recuse at his own, from a case entrusted to him by the Chief Justice. That would be a matter of his own choosing. But recusal at the asking of a litigating party, unless justified, must never to be acceded to. For that would give the impression, of the Judge had been scared out of the case, just by the force of the objection. A Judge before he assumes his office, takes an oath to discharge his duties without fear or favour. He would breach his oath of office, if he accepts a prayer for recusal, unless justified. It is my duty to discharge my responsibility with absolute earnestness and sincerity. It is my duty to abide by my oath of office, to uphold the Constitution and the laws. My decision to continue to be a part of the Bench, flows from the oath which I took, at the time of my elevation to this Court."

 

Hon'ble Justice Kurian Joseph's observations in Para 2.4 are that "There may be situations where the mischievous litigants wanting to avoid a Judge may be because he is known to them to be very strong and thus making an attempt for forum shopping by raising baseless submissions on conflict of interest. In the Constitutional Court of South Africa in The President of the Republic of South Africa etc. v. South African Rugby Football Union etc., has made two very relevant observations in this regard: 'Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.' ... Ultimately, the question is whether a fair-minded and reasonably informed person, on correct facts, would reasonably entertain a doubt on the impartiality of the Judge. The reasonableness of the apprehension must be assessed in the light of the oath of Office he has taken as a Judge to administer justice without fear or favour, affection or ill-will and his ability to carry out the oath by reason of his training and experience whereby he is in a position to disabuse his mind of any irrelevant personal belief or pre-disposition or unwarranted apprehensions of his image in public or difficulty in deciding a controversial issue particularly when the same is highly sensitive."

 

9. We are well aware that we are far from being a constitutional authority; yet, in our firm opinion, the principles of law laid down for constitutional authorities apply with equal force to this Commission. The present application, when viewed in the light of the authoritative principles laid down by the highest court of our country, leave no doubt in our mind that none of the grounds required for a valid recusal application exist or have been made out in the present case. Other than a bland statement that there is a likelihood that prejudice may be caused to the Opposite Parties, the Applicant has failed to show how any prejudice can be caused to him. The judgments cited above will also show that the questions of bias, prejudice and recusal come into play only when there are reasonable and justifiable reasons to show that a Bench may favour or disfavour a particular party and, in our opinion, have no application to the Counsel of a party. Moreover, there has to be a real likelihood of bias and not mere unfounded allegations or suspicion. Applying the 'real likelihood test', the Applicant has not made out that there is any real danger of bias. Although making out a case of probability or preponderance of probability of bias would not have sufficed, even that too has not been done.

 

10. We are also in agreement with the learned Counsel of the Opposite Party that specific prohibitions for an Advocate from appearing before a Court, Tribunal or Authority are contained in the Bar  Council Of  India  Rules and apply only in cases where the Bench Member is related to an Advocate as father, grandfather, son, grand-son, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law, which is not the case of the present Applicant. When any Advocate is not prohibited from appearing before a certain Bench then the logical corollary is that the Bench too is not prohibited from hearing that Advocate.

11. No Bench ought to bow down to insinuations of bias or prejudice founded on irrelevant or flimsy grounds and recuse itself and remain unconcerned about the plight of a consumer who will suffer hugely by delay in disposal of his complaint. We are therefore required not only to see that the cause is dealt with fairly but also to ensure that the judicial process is insulated from any machinations and the majesty of justice is preserved. Belated pleas of recusal ought not to be encouraged by a mechanical acceptance. In our view, not hearing and adjudicating upon the matter would constitute an act in breach of our oath of office, which mandates us to perform the duties of our statutory office, to the best of our ability, without fear or favour, affection or ill will. The conduct of the Applicant belatedly raising the instant plea for recusal also clearly gives rise to the suspicion of his intention to obstruct the work of administration of justice and unnecessarily delay the proceeding.

 

12. There is also another angle to the matter. The provisions of the C.P. Act provide that cases are to be disposed in a time-bound manner, the purpose being that a Consumer ought not to suffer by delay in disposal  of his Complaint. The instant Complaint was filed as far back as on 6.4.2018 and more than 10 months have elapsed, whereas it is the mandate of Section 13 (3A) of the Act that a complaint has, ordinarily, to be disposed within 3 (three) months, thus bringing into play the Doctrine of Necessity.

The post of the Hon'ble President of this Commission has been lying vacant for several months and, as per the provisions of Section 22D of the Consumer Protection Act, 1986 and the law laid down by the Hon'ble Supreme Court, which are quoted below, this Bench has been performing the duties of the President's office, not out of choice but out of sheer necessity and faithfulness towards its statutory responsibilities as its Senior-most Member. Moreover, the only other Member is currently unavailable.

 

"Section 22D: Vacancy in the office of the President - When the office of the President of a District Forum, State Commission or of the National Commission, as the case may be, is vacant or a person occupying such office is, by reason of absence or otherwise unable to perform the duties of his office, these shall be performed by the senior-most member of the District Forum, the State Commission or of the National Commission, as the case may be."

 

Gulzari Lal Agarwal vs The Accounts Officer (1996) 10 SCC 590: "Where any such vacancy occurs in the office of the President of the State Commission, the senior most (in order if appointment) member holding office for the time being, shall discharge the function of the president until person is appointed to fill such vacancy. This sub-rule is made with a view to make the State Commission functional in the absence of the President and not to allow the State Commission to render non-functional for want of the President."

 

13. It is well known that the doctrine of necessity is a common law doctrine and is applied to tide over the situations where there are such difficulties. Law does not contemplate a vacuum, and a solution has to be found out rather than allowing the problem to boil over. In this regard we may find guidance from the judgment of the Hon'ble Supreme Court reported as Election Commission of India vs Dr. Subramanian Swamy (AIR 1996 SC 1810) where it held in Para 15 - "We must have a clear conception of the doctrine. It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety. Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or Judge to decide the issue. If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit therefrom. .... If the choice is between allowing biased person to act or to stifle the action altogether, the choice must fall in favour of the former as it is the only way to promote decision-making."

 

J. Mohapatra & Co vs State Of Orissa (AIR 1984 SC 1572) Para 12 makes it further clear that "The doctrine of necessity applies not only to judicial matters but also to quasi-judicial and administrative matters."

 

14. In view of the discussion above and the binding judgments of the Hon'ble Apex Court the question of recusing ourselves from hearing this case does not arise and we are constrained to hold that the application is wholly unfounded both in law and in fact and liable to be turned down.

 

15. The application stands dismissed.