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TMI Blog1971 (1) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... as appointed an Additional Judge and on December 26, 1949 he was recommended for appointment as a permanent Judge. He then declared that he was 45 years of age. In 1956 the Government of India collected information re- lating to the educational and other qualifications of the Judges of the High Courts and their respective dates of birth. The declaration made by the respondent that his date of birth was December 27, 1904 was accepted. The Government of India having received information that the true date of birth of the respondent was December 27, 1901 commenced an enquiry. On April 17, 1959 the Chief Justice of the High Court of Calcutta asked the respondent to make a formal statement relating to his date of birth. On May 27, 1959 the respondent wrote to the Chief Justice of the High Court, Calcutta that his age entered in the matriculation certificate was incorrect, and that he was shown to be three years older than he actually was, because a true declaration of his age would have prevented him from appearing for the matriculation examination in 1918. The respondent also tendered an affidavit of one Panchakari Banerjee that the question of his age was discussed with Sir Arthur Tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution was amended by the Constitution (Fifteenth Amendment) Act, 1963 and cl. (3) was added thereto to the following effect with retrospective effect "If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final." Clause (1) of Art. 217 was also amended by the Constitution (Fifteenth Amendment) Act, 1963, with effect from October 5, 1963 and the age of superannuation of Judges of tile High Court was fixed at sixty-two years. This Court held that cl. (3) of Art. 217 having retrospective operation, validity of the order passed by the President must be adjudged, in the light of cl. (3) of Art. 217 and since the Ministry, of Home Affairs had placed the file before the President in accordance with the rules of business, the procedure could not be assimilated to the requirements of Art. 217(3). The Court observed "The question concerning the age of the appellant (respondent herein) on which a decision was reached by the President on May 15, 1961, affects the appellant in a very serious manner; and so, we think considerations of na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent as .December 27, 1901. The legality of the procedure followed by the President in making the order is challenged by the respondent. It is, therefore, ,necessary to set out in some detail the various steps taken before passing that order. On November 17, 1964 the Secretary of the 'Ministry of Home Affairs drew up a note tracing the history of the .litigation upto the decision of this Court, and invited the President to determine the age of the respondent under Art. 217 (3). The note of the Secretary was submitted to the President through the Minister of Home Affairs and the Prime Minister. On November 21, 1964 the President signed an order calling upon the respondent to make such representation as he may wish to make in the matter and to produce such evidence as he may desire. The respondent submitted his representation on December 7, 1964 and annexed therewith photostat copies of two documents an almanac and a horoscope on which he relied and certain affidavits. By his forwarding letter the respondent prayed for an oral hearing before the President to enable him "to adduce his evidence and to produce in original the documents in the Annexures and to make submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entry in ink in the almanac. On January 4, 1965 the respondent submitted four additional affidavits including his own affidavit affirming that the writing on the margin of the almanac against the date 12 Paus, 1311 B.S. was that of his maternal uncle, Jadunath Bose, who had died \,\hen he the respondent was a student of Oxford. By his letter dated February 3, 1965 addressed to the Secretary, Ministry of Home Affairs, the respondent protested against the reference of the documents to the expert, contending that the documents were obtained from him on the representation that they "were required to be placed before the President". The respondent demanded that he be supplied a copy of the order of the President by which such .reference to the expert had been made and also copies of the correspondence between, the Home Ministry and the forensic expert. He also requested that the originals of the documents be returned to him so that he might have them examined by an independent expert, who would, after his examination, give evidence as to his opinion, by affidavit or otherwise. In reply to that letter, the Secretary, Ministry of Home Affairs wrote that the procedure to be followed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination", and that it "will not be possible for a document expert, however reputed he might be, anywhere in the world, to give any definite opinion on the probable date of the horoscope and the ink writing in the margin of the almanac". After receiving the second report from the Director, the Ministry of Law raised the question about the opportunity to be given to the respondent before the President in the enquiry for determining the age of the respondent under Art. 217 (3) . It was then decided to refer the question to the Chief Justice of India for his advice. On July 24, 1965 the Chief Justice of India advised the President about the procedure to be adopted in the determination of the age of the respondent. Thereafter pursuant to a suggestion made by the Law Minister the Ministry of Home Affairs wrote to the respondent on July 31, 1965 requiring him to state the date or year of the horoscope. The respondent by his letter dated August 4, 1965, stated that it was not possible for him to give definitely the date or year of the horoscope but he asserted that it was at least in existence in the year 1921 when it was consulted on the occasion of his marriage. On February 23, 1965 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the, Chief Justice of India asking him for his advice. On September 28, 1965 the Chief Justice recommended that the age of the respondent be decided on the basis that the respondent was born on December 27, 1901. The Chief Justice set out in detail all the evidence including the reports of Dr. Iyengar, Director of the Central Forensic Science Laboratory, Calcutta bearing on the dispute as to the true date of birth of the respondent. The Chief Justice of India thereafter observed : ".......... the question which the President has to decide is whether the date of Mr. Mitter's birth mentioned on the occasions when he appeared for the Matriculation Examination as well as for the Indian Civil Service Examination, is incorrect; and that would naturally turn upon whether it is shown that the entry in ink on the margin of the almanac showing that Mr. Mitter was born on 27-12-1904, was contemporaneously made and is correct as alleged by him. The horoscope on which Mr. Mitter relies, refers to the date and time of his birth, but that does not help Mr. Mitter very much, because it is obviously based upon information given to Jyotish-Sastri Shri Jogesh Chandra Deba Sarma on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter to the President praying that the decision which had been made without affording him an audience should be reopened and that he should be granted an audience in the presence of the Chief Justice of India and a representative of the Home Ministry. The Home Secretary informed the respondent that the President's decision was final and could not be reopened. He also pointed out that though the respondent was offered the opportunity of commenting on the opinion of the Government expert, he-the respondent-had by his letter of September 1, 1965 declined that offer. On August 3, 1966, the respondent moved the petition out of which this appeal arises claiming a writ in the nature of mandamus commanding the Union of India (i) to act and proceed in accordance with law, (ii) to rescind, recall and withdraw the purported decision of the President conveyed to him by the Secretary to the Government of India in his letter dated October 13, 1965 and (iii) to forbear from giving effect or further effect to the, purported decision of the President. The petition was heard by D. D. Basu, J. After an elaborate discussion of the history of the dispute and decisions of the Courts in India an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the public or similar reasons be reached. This case was not one in which a certificate should have been asked for or granted. Against the decision of the learned Judge,, an appeal lay to a Division Bench of the High Court under the Letters Patent and no reason was suggested for not moving the High Court. The order of the President was made in 1961. The respondent could not on the date of the order be reinstated because he was even on his case more than 62 years of age. Since, however, a certificate was asked for on behalf of the Union of India and has been given, we have not thought it necessary to vacate the certificate and to ask the Union to have resort to the normal remedy of an appeal to the High Court. Article 217 (3) incorporated by the Fifteenth Amendment Act in the Constitution was given retrospective effect from January 26, 1950. On that account all question arising as to the age of a Judge of the High Court had to be decided by the President after consultation with the Chief Justice of India. A dispute, relating to the age of the respondent who was a Judge of a High Court in India was raised and the President of India after consultation with the Chief Justice of India de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re us for many of those contentions overlap. It is true that the notice requiring the respondent to show cause was issued pursuant to the papers being submitted to the President and the notice was in fact sent by the, Secretary to the Ministry of Home Affairs. But we do not think that because the President was assisted by the machinery of the Ministry of Home Affairs in serving notices, and receiving communications addressed by him it can be inferred that he was guided by that Ministry. Apparently no rules have been framed regarding the enquiry to be made by the President of India under Art. 217 (3). This was the first case which arose in which the question of age of a Judge of the High. Court had to be decided. The President has no secretarial facilities for serving notices and for taking other steps in regard to enquiries to be made under Art.. 217 (3). After the Chief Justice of India sent the file of papers with his advice to the President, the papers were not immediately submitted to the President but were, sent to the Ministry of Home Affairs. The Secretary recorded a note requesting the Minister of Home Affairs to recommend to the President that the age of the respondent ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent and the Chief Justice should meet and discuss across a table the pros and cons of the proposed action, or the value to be attached to any piece of evidence laid before the President and made available to the Chief Justice. The procedure followed in the present case of sending to the Chief Justice of India the file of papers relating to the evidence against the respondent and in his favour, and of obtaining his advice fully complied with the constitutional requirements as to consultation with the Chief Justice of India when he rendered his advice to the President. The President had given ample opportunities at diverse stages to the respondent to make his representation. All evidence placed before the President when he considered the question as to the age of the respondent was disclosed to him and he-respondent-was given an opportunity to make his representation thereon. There is nothing in cl. (3) of Art. 217 which requires that the Judge whose age is in dispute, should be given a personal hearing by the President, The President may in appropriate cases in the exercise of his discretion give to the Judge concerned an oral hearing but he is not bound to do so. An order made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to produce on the subject of his age, beside the evidence he had already produced. By his telegram dated September 1, 1965, the respondent requested the President to send for the papers and documents, if not already sent for, and, to grant him an audience "if at all necessary". But in his letter addressed to the Secretary of the Ministry of Home Affairs on the same day he stated that all the papers may be placed before the President and the President may be "pleased to grant an audience for the purpose of deciding the question of his age." Article 217 (3) does not guarantee a right of personal hearing. In a proceeding of a judicial nature, the basic rules of natural justice must be followed. The respondent was on that account entitled to make a representation. But it is not necessarily an incident of the rules of natural justice that personal hearing must be given to a party likely to be affected by the order. Except in proceedings in Courts, a mere denial of opportunity of making an oral representation will not, without more, vitiate the proceeding. A party likely to be affected by a decision is entitled to know the evidence against him, and to have an opportunity of making a re- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the President treated the matter as formal, and guided by the advice of the Home Minister and the Prime Minister he mechanically accepted the advice of the Chief Justice of India and surrendered his own judgment to the judgment of the Chief Justice of India. But on this part of the case there is no reliable evidence. No such ground was raised in the High Court. In this Court in the affidavit in reply filed by the respondent on February 24, 1967 in answer to the additional affidavit of the Union of India the respondent stated two new grounds (I) that the Chief Justice of India had privately advised the Ministry of Home Affairs as to the conduct of the enquiry or reference under Art. 217 (3) of the Constitution and he was on that account disentitled to tender advice to, or to be consulted by, the President under Art. 217 (3), and that the "part played by the Chief Justice of India relative to the reference was against all principles of natural justice and fair play and vitiated his own purported advice to the President as well as the purported decision of the President rendering the purported decision a nullity"; and (2) that "the President of India left New Delhi shortly after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply him a copy of the report of the board of inquiry which contained matters highly prejudicial'to him and which had been sent to and read by the adjudicating officer before he sat to inquire into the- charge, amounted to a failure to afford the appellant Kanda "a reasonable opportunity of being heard", in answer to the charge within the meaning of article 135 (2) of the Constitution of Malaya and to a denial of natural justice. Lord Denning who delivered the judgment of the Judicial Committee considered the question whether the hearing by the adjudicating officer was vitiated because that officer was furnished with the report without inspector Kanda being given any opportunity of correcting or contradicting it. Before the High Court of Malaya the question posed was whether there was a real likelihood of bias, that is "an operative prejudice, whether conscious or unconscious" on the part of the adjudicating officer. The Court of Appeal held that there was no likelihood of bias. In the opinion of Lord Denning however the proper approach to the case was different. "The rule against bias is one thing. The right to be heard is another. Those two rules are the essential characterist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was made which worked to the prejudice of the respondent would arise. The Court will not then consider the question whether the representation had in fact worked to his prejudice. A reasonable possibility may be sufficient. In the present case no evidence was placed before the President or considered by him which was not disclosed to the respondent. The principle in B. Surinder Singh Kanda's case ([1962] A.C. 322) has therefore no application. It is necessary to observe that the President in whose name all executive functions of the Union are performed is by Art. 217 (3) invested with judicial power of great significance which has bearing on the independence of the Judges of the higher Courts. The President is by Art. 74 of the Constitution the constitutional head who acts on the advice of the Council of Ministers in the exercise of his functions. Having regard to the very grave consequences resulting from even the initiation of an enquiry relating to the age of a Judge, our Constitution makers have thought . it necessary to invest the power in the President. In the exercise of this power if democratic institutions are to take root in our country, even the slightest suspicion o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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