# Arvind Kumar-II v. High Court of Judicature at Allahabad & Anr

- **Citation:** (2014) 1 ILRA 330
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-03-21
- **Case number:** Civil Misc. Writ Petition No. 3041 of 2013
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-kumar-ii-v-high-court-of-judicature-at-allahabad-anr-42800
- **Pages:** 7

## Headnote

Constitution of India, Art.-227-Expunging
adverse
remark-petitioner
while
discharging judicial duty-passed certain
order on release application-Distt. Judge
1 All] Arvind Kumar-II Vs. High Court of Judicature at Allahabad & Anr.
331
while
hearing
revision-passed
certain
adverse
remark
behind
the
back
of
petitioner-time and again Supreme Court
depreciated practice of making unnecessary
remark against subordinate judicial officersitting in appellate revisional jurisdictionafter going through order passed by
petitioner nothing objectionable materialrequiring the appellate/revisional court to
pass adverse remark-against principle of
Natural Justice-offending para of adverse
remark set-a-side.

Held: Para-33
This apart, it has been well settled that such
remarks ought not to be made on the
judicial side unless the officer is present
before the court or is given an opportunity
to explain his conduct. The petitioner who is
a judicial officer and a man of dignity and
integrity was entitle to a minimal courtesy
of furnishing his explanation before being
condemned. This was none done. He came
to know of it on 7.9.2013 when an annual
confidential remark to the above effect was
made in his service book for the year 20122013.

Case Law discussed:
AIR 1972 Alld. 193; AIR 1964 SC 1; AIR 1964 SC
704; (1986) 2 SCC 577; (2001) 3 SCC 54; AIR
1963 SC 1728; (1986) 2 SCC 569; (1990) 2 SCC
533; (1994)1 SCC 450; (1997)4 SCC 65; (2012) 6
SCC 491; (2011) 3 SC 496; AIR 1996 SC 3240.

## Text

330 INDIAN LAW REPORTS ALLAHABAD SERIES
Balasaria Construction (P) Limited Vs.
Hanuman Seva Trust and others and
contends that a plaint is not liable to be
rejected under Order 7 Rule 11 CPC on
the ground of being barred by law of
limitation.

5. In the above-referred case the
provisions of Order 7 Rule 11(d) CPC were
not held applicable as the court was of the
opinion that the aforesaid question can not be
decided without proper pleadings framing an
issue of limitation and taking of evidence.

6. This was preciously laid down by
the Supreme Court in Popat and Kutecha
Property Vs. State Bank of India Staff
Association (2005)7 SCC 510 that where a
question of limitation has to be decided on
the basis of the fact, the plaint is not liable to
be rejected under Order 7 Rule 11(d) CPC.

7. The settled position otherwise is that
the plaint of a suit could be rejected, if the suit
on the face of the pleadings in the plaint itself
appears to be barred by law of limitation.

8. In this regard, a reference may be had
to the judgment of the Supreme Court in the
case of N.V. Srinivasa Murthy and others Vs.
Mariyamma and others (2005) 5 SCC 548.

9. Thus, in sum and substance where
the question of suit being barred by
limitation is a mixed question of fact and
law and is dependent upon the evidence to
be adduced by the parties, it is not proper
to resort to Order 7 Rule 11 CPC so as to
reject the plaint summarily.

10. The non rejection of the plaint under
Order 7 Rule 11 CPC would only entail
participation and contest of the suit by the
defendant who thereupon can always raise an
issue of the suit being barred by limitation. On
such a plea being raised an issue regarding suit
being barred by time can be framed by the
court and decided more appropriately on the
basis of the evidence adduced by the parties
irrespective of rejection of the plaint under
Order 7 Rule 11 CPC.

11. Thus, the order impugned does
not in any manner results in miscarriage
of justice causing irreparable loss and
injury to the petitioner which may warrant
interference by this Court in exercise of
extra-ordinary writ jurisdiction.

12. In view of the aforesaid facts and
circumstances, the petition is disposed of
with the direction to the court below to
formulate an issue regarding the suit being
barred by limitation and to decide the same
after allowing the parties to adduce evidence
on the said issue.

13. The writ petition is disposed of.
--------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2014

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 3041 of 2013

Arvind Kumar-II Petitioner
Versus
High Court of Judicature at Allahabad &
Anr. ...... Respondents

Counsel for the Petitioner:
Sri Shashi Nandan, Sri Udayan Nandan,
Sri Rupak Chaubey
Counsel for the Respondents:
C.S.C., Sri Manish Goyal

Constitution of India, Art.-227-Expunging
adverse
remark-petitioner
while
discharging judicial duty-passed certain
order on release application-Distt. Judge
1 All] Arvind Kumar-II Vs. High Court of Judicature at Allahabad & Anr.
331
while
hearing
revision-passed
certain
adverse
remark
behind
the
back
of
petitioner-time and again Supreme Court
depreciated practice of making unnecessary
remark against subordinate judicial officersitting in appellate revisional jurisdictionafter going through order passed by
petitioner nothing objectionable materialrequiring the appellate/revisional court to
pass adverse remark-against principle of
Natural Justice-offending para of adverse
remark set-a-side.

Held: Para-33
This apart, it has been well settled that such
remarks ought not to be made on the
judicial side unless the officer is present
before the court or is given an opportunity
to explain his conduct. The petitioner who is
a judicial officer and a man of dignity and
integrity was entitle to a minimal courtesy
of furnishing his explanation before being
condemned. This was none done. He came
to know of it on 7.9.2013 when an annual
confidential remark to the above effect was
made in his service book for the year 20122013.

Case Law discussed:
AIR 1972 Alld. 193; AIR 1964 SC 1; AIR 1964 SC
704; (1986) 2 SCC 577; (2001) 3 SCC 54; AIR
1963 SC 1728; (1986) 2 SCC 569; (1990) 2 SCC
533; (1994)1 SCC 450; (1997)4 SCC 65; (2012) 6
SCC 491; (2011) 3 SC 496; AIR 1996 SC 3240.

(Delivered by Hon'ble Pankaj Mithal, J.)

1. The Court was addressed by Shri
Shashi Nandan, Senior counsel assisted
by Sri Udayan Nandan, learned counsel
for the petitioner and Shri Manish Goyal,
learned counsel for respondents in a most
precise and a concise manner with all
fairness without any competitiveness of
winning and loosing. The assistance and
the ability with which it has been
provided is worth appreciation.

2. Petitioner Arvind Kumar-II a
member of the subordinate judiciary of
the State of U.P. visualizing that his
career is in ruins preferred this petition
under Article 226 of the Constitution of
India for expunging the remarks made
against him by the District Judge in
paragraph 32 of the judgment and order
dated 20.3.2013 passed in Rent Appeal
No. 42 of 2012 (Asfar Husain Vs. Smt.
Shamin Bano).

3. The petition was first presented to
a Division Bench and on a query made by
the Court as to whether the petitioner has
preferred any representation against the
adverse remark contained in the above
paragraph, the petitioner instead of
submitting specific reply informed that
such a remark made on judicial side can
be addressed by the court in exercise of its
inherent
power
of
superintendence
contending thereby that the making of
representation is of no avail. Accordingly,
the Court vide order dated 13.12.2013
directed this petition to be treated as one
under Article 227 of the Constitution of
India. It is in pursuance of the said order
that the registry has placed and listed this
petition before me as I am dealing with
petitions under Article 227 of the
Constitution of India arising from suits.

4. Justice Sulaiman of the Allahabad
High Court in Panchanan Banerji Vs.
Upendra Nath Bhattacharji AIR 1927 Alld.
193 ruled that the High Court has power to
expunge remarks on the character of a person
before the court. He observed "The High
Court, as the supreme court of the revision
must be deemed to have power to see that
courts below do not unjustly and without any
lawful excuse take away the character of a
party or of a counsel before it."

5. A three judges bench of the
Supreme Court in Dr. Raghubir Saran Vs.
332 INDIAN LAW REPORTS ALLAHABAD SERIES
State of Bihar AIR 1964 SC 1 in relation
to a criminal case held that the High Court
has inherent power to expunge remarks in
judgment or order of subordinate court
made against a stranger. It observed
"Every High Court as the highest court
exercising criminal jurisdiction in a State
has inherent power to make any order for
the purpose of serving the ends of justice.
This power extends to expunction or
ordering expunction of irrelevant remarks
made against a person who is neither a
party nor a witness to the proceedings."

6. In the State of Uttar Pradesh Vs.
Mohammad Naim, AIR 1964 SC 704 the
Court in a criminal case had made adverse
remarks against police force of the State and
the government had applied for deletion of
those remarks. The special bench of four
judges of the Supreme Court held that the
High Court in exercise of its inherent
jurisdiction can expunge remarks made by it
or by a lower court, if it is necessary to do so
to prevent abuse of the process of the Court
or otherwise to secure the ends of justice but
the said jurisdiction is of exceptional nature
to be utilised exceptionally.

7. The Supreme Court in Advocate
General of Bihar Vs. High Court
Judicature at Patna (1986)2 SCC 577
ordered for the expunction of strictures
made by the learned single judge of the
High Court against the Advocate General
of the State terming the incident between
the bench and the bar to be unfortunate
which could have been avoided with little
tact and understanding without making an
inquiry as to who was at fault.

8. It is in this legal background that the
Supreme Court in the matter of 'K' A Judicial
Officer (2001) 3 SCC 54 finally laid down
that a sub-ordinate judge faced with
disparaging and undeserving remarks made
by a court of superior jurisdiction is not
without any remedy. He can invoke the
inherent jurisdiction of the High Court for
expunging the objectionable remarks as the
High Court is a Court of record and is vested
with powers of superintendence over the
courts
below
as
also
with
inherent
jurisdiction but the aforesaid extra-ordinary
inherent power vested in the High Court to
expunge remarks recorded by the court of
superior jurisdiction can be utilized subject to
satisfying the following tests:-

i) The passage or the remark
complained of is wholly irrelevant and
unjustifiable;

ii) Its retention on the record will
cause serious harm to the person/persons
to whom it refers;

iii) Its expunction will not affect the
reasons in the judgment and order; and

iv) Whether the party whose conduct
is in question was before the court to
defend himself.

9. In Ishwari Prasad Mishra Vs.
Mohd Isha AIR 1963 SC 1728 a three
Judges Bench of the Supreme Court has
emphasised the need to adopt utmost
judicial restrain against using strong
language and imputation of motive
against the lower judiciary, as in such
matters the judge concern has no remedy
in law to vindicate his position.

10. Their Lordships of the Supreme
Court in Nirajan Patnaik Vs. Shashi
Bhushan Kar and another (1986) 2 SCC
569 advised that harsh and disparaging
remarks are not to be made against
persons and authorities whose conduct
come into consideration before Courts of
law unless it is really necessary for the
decision of the case. They also reminded
1 All] Arvind Kumar-II Vs. High Court of Judicature at Allahabad & Anr.
333
that higher the forum, greater are the
powers and the greater is the need for
restrain and mellowed approach.

11. In A.M. Mathur Vs. Pramood
Kumar Gupta (1990) 2 SCC 533 the
Supreme Court has sounded a note of
caution that as a general principle for the
proper
administration
of
justice
"derogatory remarks ought not to be made
against the persons or the authorities
whose conduct come into consideration
unless it is absolutely necessary for the
decision of the case".

12. Again in K.P. Twari Vs. State of
Madhya Pradesh (1994) 1 SCC 450 it was
reiterated that using intemperate language
and castigating strictures on the officers of
the lower judiciary diminishes the image of
the judiciary as a whole in the eyes of public
and therefore the higher courts should
exercise restrain from using disparaging
remarks against the lower judiciary.

13. In Brij Kishore Thakur Vs. Union
of India (1997) 4 SCC65 the Apex Court
disapproved the practice of passing strictures
against sub-ordinate officers and observed
that no greater damage can be caused to the
administration of justice then by publicly
expressing lack of faith in the sub-ordinate
judiciary by the higher courts.

14. The above legal position apart, a
superior court is loco-parentis vis-a-vis
the subordinate courts. Loco-parentis is a
person who is in the situation of a lawful
father of a child. Therefore, the relationship of
a superior court with that of subordinate court
is like a father to a child. It acts as its parent.
The superior court as such not only acts as a
controlling or supervising authority of the
subordinate court but as a friend, philosopher
and guide. Therefore, the superior court has to
keep in mind the concept of loco-parentis
while sitting in appeal over the judgments and
orders of the subordinate court to keep at bay
any uncalled for and unwarranted remarks.

15. A judge functioning at any level
discharges his functions independently and
judicially. He has his own dignity and
credibility. The same has to be maintained
and preserved by all specially the superior
court that acts as loco-parentis by avoiding
unwarranted comments on the reputation of
the officer as it creates a dent in the image of
the entire judicial system. Instead, if
necessary the Court should adopt a
reformative method on administrative side.

16. Thus, in the case of Amar Pal
Singh Vs. State of U.P. and others (2012)
6SCC491 it has been eloquently said that a
judicial officer projects the face of the
judicial system and the independence of
judiciary. This should be paramount in the
mind of the judge of the superior court while
sitting in appeal. He is therefore, required to
maintain sobriety, calmness and poised
restrain
being
loco-parentis
howsoever
strongly he may feel about the fallacy in the
judgment and the order passed by an officer.

17. In the matter of 'K' a judicial
officer (Supra) it has been pointed out that
any criticism and observation by a superior
court in a judicial pronouncement touching
on the character of a judicial officer have its
own mischievous infirmities. In the first
place, it condemns the officer unheard with
no opportunity to shield himself. Secondly, it
is a criticism in public. Thirdly, it gives the
litigating party not only the sense of victory
over his opponent but also over the judge.
Lastly, it demoralises the officer and places
him in the category of a litigant for seeking
expunction of the remarks. Therefore,
whenever the conduct of a judicial officer,
334 INDIAN LAW REPORTS ALLAHABAD SERIES
unworthy of him, comes to the notice of the
higher court on the judicial side, the better
and safer course admissible is to dispose of
the lis on merits thereof avoiding criticism of
the officer and to draw proceedings
separately on the administrative side, if
necessary.

18. One should also not loose sight
of a well recognised legal maxim that 'the
honesty and integrity of a judge can not
be questioned, but his decision may be
impugned for error either of law or fact'.
It is in view of the above principle that it
has been settled that errors in the
judgment and order may be corrected by
appellate tribunals in cases where the law
allows for an appeal but not the honesty
and the character.

19. A superior court is only an
appellate or revisional authority of the
judgment and order of the court below to
test its correctness and soundness but is
not expected to sit in judgment over the
conduct of the judicial or quasi judicial
authority whose decisions are in issue
before it and to indulge in criticising the
conduct of that sub-ordinate functionary.
The superior court does not act as a
disciplinary authority while dealing with
the judgment or order of the lower
authority in appeal or revision.

20. Thus, a court sitting in appeal
has no authority of law to castigate or
stigmatise an officer through a judgment
as it would be plainly condemning him in
flagrant violation of the principles of
natural justice without holding an inquiry.

21. The beauty of the Indian judicial
system lies in its hierarchical system
which provides for the correction of the
judgments and orders of the subordinate
courts by the superior courts but without
any malice towards any one who went
wrong in passing the same. The Subordinate courts accepts the wisdom of
superior
courts
unmindful
of
their
decisions going wrong with the zeal to
perform better and to act more wisely in
future. But if judges of the superior courts
starts rebuking the officers of the subordinate judiciary for taking a particular
view which may not find approval of
higher echelons it would create ripples in
the judiciary destroying the very fabric of
its independence and fearless approach to
decision making process.

22. In Mona Panwar Vs. High Court
of Judicature at Allahabad and others
(2011) 3 SC 496 while expunging the
remark made by the High Court on
judicial side against a subordinate judicial
officer observed that to 'err is human' and
the dictum applies even to judges at all
levels as it is often said that judge is yet to
be born who has not committed any error.
Therefore, there is a need to adopt utmost
judicial restrain and not to make any
disparaging remarks against the members
of lower judiciary while sitting in appeal
over their judgments and orders.

23. In Kashi Nath Roy Vs. State of
Bihar AIR 1996 SC 3240 it has been
observed that in the judicial hierarchical
system it is expected that in some
measure the lower courts may go wrong
in decision making on facts and law both
but such errors are meant to be corrected
by the appellate forum without frowning
upon the court below in unnecessary
measure.

24. In view of the above legal
position, two things are clear enough. In
the first place superior courts should avoid
1 All] Arvind Kumar-II Vs. High Court of Judicature at Allahabad & Anr.
335
making harsh and castigating remarks
against the lower judiciary or its officers or
any other person or authority whose
conduct falls before it for consideration
unless it is absolutely necessary for the
decision of the suit/matter. Secondly, such
adverse remarks, if made can be expunged
by the High Court in exercise of its inherent
supervisory jurisdiction as a court of record
subject to satisfying the tests laid down in
that respect.

25. Additionally, it is not ordinarily
permissible and proper to expose a
judicial officer to punishment by way of
strictures of superior courts that too in
exercise of appellate power in gross
breach of principles of natural justice.

26. In the light of the above legal
discussion, I turn to the facts of the instant
case.

27. The petitioner holding the post
of Civil Judge (Senior Division) acting as
a prescribed authority on the evaluation of
the evidence on record had allowed the
release application of the landlady under
Section 21 (1) of the U.P. Act No. 13 of
1972 vide judgment and order dated
20.3.2013 holding the need of the landlady to be genuine and bona-fide.

28. The tenant had then preferred the
rent appeal whereupon the District Judge not
only set aside the order of release passed by
the prescribed authority but has frowned
upon the petitioner observing that he has
failed to take into account the subsequent
events that have taken place during pendency
of the release application which were on
record and this was done by him wilfully and
deliberately
and
his
conduct
reflects
negligence and ulterior motive in discharge
of judicial function.

29. Paragraph 32 of the judgement
containing an adversarial remark against
the
petitioner
is
reproduced
herein
below:-

"mHk; i{k ds }kjk mijksDr rF; dfFkr fd,
x, vkSj muds laca/k esa lk{; izLrqr dh x;h] dk
iw.kZ fooj.k fo}ku fu;r izkf/kdkjh 1⁄4fu;r izkf/kdkjh
Jh vjfoUn dqekj flfoy tt lh0 fM0 ds in ij
dk;Zjr gSa vkSj og U;kf;d lsok ds vuqHkoh o ofj"B
vf/kdkfj;ksa esa ls ,d gSa1⁄2 ds }kjk vius vkyksP;
fu.kZ.k esa mfYyf[kr fd;k x;k gS] mlds mijkUr Hkh
mijksDr rF;ksa ds laca/k esa dksbZ laoh{kk muds }kjk
ugha dh x;h vkSj u gh muds }kjk Hkou voeqfDr
ds izkFkZuk&i= ds fopkj.k ds vUrjky esa ?kfVr
rF;ksa ds laca/k esa izLrqr fd, x, dFku o lk{; dks
muds }kjk tkucw{kdj LosPNkiwoZd vuns[kk fd;k
x;k] tks fd muds U;kf;d dk;Z ds lEiknu esa ?kksj
ykijokgh o nqHkZkouk dks ifjyf{kr djrk gSA"

30. The remarks made by the District
Judge in the judgment are certainly
stigmatic in nature. The said remarks, if
permitted to stand would definitely affect
the career of the petitioner and cause serious
harm to him later.

31. The reading of two judgment and
orders; one passed by the prescribed authority
and the other by the District Judge and the
perusal of the record of the court below which
had been summoned by this Court, in no way
indicates that the petitioner had acted with any
negligence or with ulterior motive in deciding
the release application. At least there is no
material to impute any motive in this regard.
The comment to this effect is unfounded and
without any basis. It may be another thing that
the judgment and order passed by him may
stand vitiated for non consideration of some
material on record but hardly any motive for
ignoring the same can be imputed for it.
Therefore, the remark contained in the
passage in question is wholly unjustifiable. It
would have been sufficient for the appellate
authority to have stated that the order
336 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned
is
unsustainable
for
non
consideration of the evidence on record.

32. I have read the whole of the
judgment and if it is read omitting the
impugned paragraph 32 it would not
affect the reasoning contained in the
judgment so as to weaken it on merits. In
short, the merits of the judgment would
not be affected by the deletion of the
above paragraph. The reasoning or even
the conclusion arrived at by the District
Judge in passing the said judgment would
remain unaffected by its deletion.

33. This apart, it has been well settled
that such remarks ought not to be made on the
judicial side unless the officer is present before
the court or is given an opportunity to explain
his conduct. The petitioner who is a judicial
officer and a man of dignity and integrity was
entitle to a minimal courtesy of furnishing his
explanation before being condemned. This was
none done. He came to know of it on 7.9.2013
when an annual confidential remark to the
above effect was made in his service book for
the year 2012-2013.

34. The aforesaid objectionable
remark made by the District Judge is
therefore clearly in violation of the
principles of natural justice and is not
sustainable in law.

35. In view of the above, the petitioner
qualifies all the tests laid-down in 'K' a
judicial officer (Supra) for expunging the
remarks made against him by the District
Judge on the judicial forum.

36. Accordingly, for all that has been
said, I direct for expunction of the entire
paragraph 32 of the judgment and order
dated 20.3.2013 passed by the District Judge
in rent appeal no. 42 of 2012.

37. The petition is allowed but with
no costs. The lower court record is
directed to be returned forthwith.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.02.2014

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Civil Misc. Writ Petition No. 3689 of 2014

Mustaq Ullah..... Petitioner
Versus
State of U.P. and Ors...... Respondents

Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Service Lawtermination of service-during verification of
educational record-certificates of petitioner
found forged-termination order questioned
in absence of disciplinary proceeding-heldonce the declaration in application form
found incorrect-no use of disciplinary
proceeding-termination held-proper.

Held: Para-20
Applying the principles laid down in the
aforementioned
judgments
of
Hon'ble
Supreme Court on the facts of the present
case, this Court finds that since the
petitioner procured the appointment on the
basis of forged mark sheet and certificate, it
amounted to misrepresentation and fraud
on the employer. In the circumstances,
there would be no equity in favour of the
petitioner or any estoppel against the
employer while restoring to termination
without holding any enquiry. The petitioner
suppressed material information and gave
false information and, therefore, he cannot
claim any right to continue in service. The
respondent employer has rightly exercised