ALOK KUMAR ROY versus DR. S. N. SARMA AND ANR.

Citation: [1968] 1 S.C.R. 813 · Decided: 19-10-1967 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

ALOK KUMAR ROY 
A 
DR. S. N. SARMA AND ANR. 
October 19, 1967 
[K. N. 
WANCHOO, C. J., R. S. 
BACHAWAT, V. 
RAMASWAMI, 
G. K. MITTER, AND K. S. HEGDE, JJ.J 
B 
High Court, Judge of-Awii;nted as Commissi&n of Enquiru-
If could act as Judge-Effect of High Court Judge receiving petition 
and passing order at a place other than seat of High Cou.rt-Chief 
C 
Junice pa•sina remark• against co!!eaaue-Propriety. 
One of the Judges of the High Court of Assam was nominated 
to be the Vacation Judge for hearing urgent civil and criminal ap-
plications when the High Court was closed for vacation from 17th 
September 1966 to 19th November 1966. Certain days were fixed as 
the vacation court days, and if there was any extremely urgent mat-
D 
ter the Vacation Judge could hear it on any other day. by appoint-
ment. At that time the same Judge was heading a Commission of 
Enqujry under the' Commission of Inquiry Act, and in ronnectiOn 
with. that work, on 2nd November 1966, the Vacation Judge went 
from Gauhati the seat .of the High Court. to Sibsagar. 
The appellant was a student of a college at Gauhati. He was ex-
pe!led from the college on 26th October 1966. He tendered an un-
E 
conditional' apology the next day and attended classes till the end 
of the month; but, on 2nd November. when he wanted to pay the 
fee for an examination to be held on 4th November, the fee was not 
received as the Principal of the College had not accepted the apology. 
A!! the Vacation Judge was not available at Gauhatl, the appellant/ 
went to Sibsagar and presented a writ petition to the. Vacation 
. Jµdge. The Judge entertained the petition and passed an Interim F 
order. A ropy of .the interim order was prepared at Sibsagar ;md 
given to the appellant to be taken to Gauhati where it WM sealed 
and served on the University, The appellant was then allowed to 
sit for the examination subject to the result of the writ petition: 
Thereafter. the papers relating to the writ petition were sent to the 
High Court at Gauhati, and after the vacation was over, certain mis-
cellaneous orders were passed on the writ petition. Eventuallv. it 
came up for hearing and was dismissed by a Bench consisting af the G 
Chi~f Justice of the High Court and another Judge. 
The 
Chief 
Justice held that: (1) the Vacation. Judge while performing the dutie$ 
of a Commission of Enquiry, could not 'also perform the duties of a 
Judge o~ t!Je High Court. (2). a Judge of the High Court could not 
hold a sittmg anywhere else ~cept at the seat of the High Court· 
a';'d (3l. the yacation, Judge exhibi!ed 'unholy haste and hurry' and 
his act10n, disclosed an unnecessary zea. 1 on his part to assjst. the 
appellant. The other Judge agreed with the order of dismlss81 oii)y B 
on the second ground. 
~· 
In appeal to this Court, 
HELD: . (!) Judges of the High Court are often appointed under 
the CommlssJon of I1;1q?iry .Act to head Commissions for various pur.. 
poses. These Comm1ss10ns are temporary affairs and usually .·their 
813 
814 
SUPREME COURT llliPORTS 
[lil68j l s.c.R. 
A sittings are not continuous. A Jullge of the High Court when he II 
appointed to head such a Commission does not demit his office as a 
Judge nor does the appointment deprive him of his rights and pr1. 
vileges as a Judge of the High Court. Therefore, there was nothing 
objectionable on the part of the Vacation Judge working as a Judge 
of the High Court while he was heading the Commission, for, when 
the Commission was not actually sitting: he was entitled to sit and 
act as a Judge of the High Court. (817 G-H; 818 CJ. 
B 
(2) Assuming that a Judge of the High Court could not pass 
orders as a Judge anywhere else except at the seat of the IDgh 
Court, the effect of such an 
assumption in the present cue is, 
that the presentation of the writ petition at Sibsagar was ir-
regular and the interim order passed thereon was also irregular. 
But, as the petition was sent to Gauhati IBter and dealt with by 
the High Court there, the petition must be deemed to have been re-
c presented to the High Court, and the irregularity in presentati0n 
must be held to have been cured. It was open to the High Court 
to consider whether the irregular interim order should be recu-
larised or to deal with the petition en merits. But it was not open 
to the High Court to throw out the petition merely on the ground 
that the original presentation was irregular. [818 H; 819 A-E]. 
(3) Assuming that the Vacation Judge wrongly took th

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