TMI Blog1998 (2) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... ations. It was provided in the Rules that fifty per cent of these posts shall be filled up by direct recruitment on the basis of the results of the West Bengal Miscellaneous Service Recruitment Examination and the remaining fifty per cent by promotion. Originally, under the 1973 notification, the eligibility for promotion was restricted to the following : (a) Confirmed Upper Division Clerk of the Labour directorate and of the shops and establishment Directorate, Govt. of West Bengal. (b) Confirmed Labour Welfare Worker of the Labour Directorate, West Bengal, who were at least Matriculates or had equivalent qualification and had rendered not less than 10 (ten) years continuous service as Labour Welfare Workers under the labour Directorate. (c) Confirmed Assistant Computers in the statistical section of the 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 : (a) Confirmed 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he next higher posts, namely, Inspectors, Investigators and Supervisors etc. in the West Bengal Subordinate Labour Service under the Labour Directorate, Government of West Bengal and also further commanding the Respondents not to promote the temporary and/or non-confirmed Upper Division Clerks to the said posts; (b) for a Writ of Certiorari directing the Respondents to produce the records of this case to this Hon'ble Court, so that conscionable justice may be rendered; (c) A Rule in terms of prayers (a) and (b); (d) An interim order of injunction restraining the Respondents and/or their agents from giving any promotion to the said higher posts namely Inspector, Investigator, Supervisor etc, in the West Bengal Subordinate Labour Service under the Labour Directorate, 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 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 action on the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that we have not expressed our opinion on the merits of the respective cases of the parties. 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 for promotion of Assistant Computers, and that too with effect 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 appellants before us, after due consideration, promoted 40 employees drawn from all the three categories of feeder posts, including those namely, the present respondents, who had filed Writ Petition (C.O. No. 6584 of 1984), by two orders. (i) Order No. 1187 G.E. dated 16.4.1985 and (ii) Order No. 1832 G.E. dated 6.6.1985 to various posts in the Subordinate Labour Service. 13. Two years later, the same persons, namely, the present respondents, except Smt, Shyamali Ghat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comprised of Mr. Justice Ajit Kumar Sengupta and Mr. Justice Shyamal Kumar Sen and they, by their impugned judgment dated 21.7.1992, allowed the appeal with the direction that the 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 although they will not be entitled to any arrears of salary with effect from that date, their basic pay in the scale of pay would be fixed by treating 13th March, 1980 as the date of their promotion without, however, affecting the seniority and other benefits of the persons already promoted to the Subordinate Labour Service. The pay so fixed, was made payable to them 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 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, nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n'ble Mr. Justice A.K. Sen Gupta was pleased to allow the said application of the petitioners directing the authorities to give promotion on the basis of the seniority. His Lordship was further pleased to direct the authorities to give promotion to the Writ Petitioners to the sub-ordinate Labour service w.e.f. 13th March, 1980. His Lordship was further pleased to direct the authorities to give promotion to the petitioners to the West Bengal Sub- Ordinate Labour Service forthwith. But against the said Judgment of His Lordship Mr. A.K. Sen Gupta and Appeal having the Tender No. FMAT 3213 was preferred before this Hon'ble Court. The Division Bench after hearing the parties was pleased to dispose of the said appeal directing the Respondent authorities to follow and or to give promotions in accordance with the above prescribed rules. Therefore the judgment and the order of the Trial Judge stood upheld. Accordingly, pursuant to the judgment of the Trial Court, authorities promoted the Writ Petitioners on 17.4.85 to the posts of Investigators/Inspectors under West Bengal Sub-ordinate Labour Services, Labour Directorate, Government of West Bengal and the petitioners have been poste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service on and from 13th March, 1980, because on that date many junior persons and even unconfirmed Upper Divisions Clerks were promoted to the Labour service. But the petitioners were illegally deprived of 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 before the authorities for the promotion and payment 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 : 10. 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 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld sit in the Division Bench to decide the appeal against that judgment? 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 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 the High 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 the hearing should be done by a Judge with an unbiased mind. 25. Bias may be defined as a pre-conceived opinion or a pre-disposition or pre-determination to decide a case or an issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices 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 F. 2nd 650 says:- If, however, 'bias' and 'particularly' be defined 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 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 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, he may not. But this question does not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 34. In Metropolitan Properties Co. v. Lannon, (198) W.L.R. 815, it was 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 vs. Prem Chand, Air 1957 SC 425. In that case, although the Court found that Chairman of the Bar Council Tribunal, appointed by the chief Justice of the 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 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 in 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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