Friday, July 04, 2008

FAILURES OF INDIAN JUDICIARY

e - Voice Of Human Rights Watch - e-news weekly Spreading the light of humanity & freedom Editor: Nagaraj.M.R....vol.4 . issue.27......05/07/2008 Support Amnesty International Editorial : WHO WILL BELL THE CORRUPT FEW AMONG INDIAN JUDICIARY & INDIAN POLICE ? When the fence itself eats into the crop which it has to protect , when the doctor himself kills the patient whom he has to treat , when the mother supposed protect her child kills it herself , when the king supposed to protect his subjects himself kills them , WHEN THE POLICE & JUDGE SUPPOSED TO GIVE JUSTICE , PROTECT HIS CITTIZENS HIMSELF MEATS OUT INJUSTICE , where to appeal ? it is nothing but anarchy. These corrupt few are also bringing disgrace to the august institutions they occupy & are also making contempt of those very offices they hold & making contempt of citizens of India. Who will dare to bell the fat , corrupt cats & save democracy in India. Your's sincerely, Nagaraj.M.R. INDIAN JUDICIARY UNDER RTI PURVIEW The corrupt among public servants always give a ruse , reason to escape from accountability. Recently government of Karnataka under president's rule has enacted a rule limiting the number of informations sought in RTI application to 3 . already bureaucrats are successful in exempting official file notings from RTI purview. These file notings are the basis on which official decisions are taken by superiors , so if one wants to know the intention behind an official decision it is imperative to know all the notings. Police apply 3rd degree torture on accussed , ask questions for hours in the name of extracting truth , the same police are afraid to answer questions lest the truth come out. In the courts of law , numerous questions are asked , cross examination done to extract truth . if one remains silent it amounts to confession / agreeing to all charges leveled. In courts of law , during cross examination one must give straight forward answers , one cann't give vague answers nor state excuses for not answering a question. If one doesn't give straight forward answers that also is considered as agrreing to the charges levelled. The courts go to any length to extract answers to it's questions , take for example rape cases in the backdrop of our Indian tradition. In the courts of law , the rape victim - woman who has already suffered injustice , shame is made to depose before male judges , lawyers who are total strangers and made to repeatedly explain how the crime of rape was committed. So once again the victim is made to suffer more shame in the society. For the courts answers to questions , cross examination , legal procedures is more important than honour of woman. The very same judges are afraid to answer questions , cross examination under one pretext or the other lest the truth come out. Even our people's representatives – MPs , MLAs , etc are afraid to speak out truth , to honour RTI act citing legal privileges , etc. in India , during appointment of persons to government service back ground check & clearance by police is mandatory & during appointment into sensitive defense , space , atomic energy establishments , etc apart from police verification , investigation by intelligence agencies is a must. No such thing for our MLAs , MPs . However now criminalization of politics is almost in India , some of the accussed are drafting laws like IPC , Indian defense rules , police code , purviews of judiciary , etc. they are drafting laws to legalise their crimes. The election commission of India is not properly verifying the affidavits of candidates , also the vigilance authorities , lokayukthas are not properly verifying the affidavits of sitting MLAs , MPs , etc. More than RTI ACT , to seek information is part of every Indian citizen's fundamental rights & human rights , RTI ACT is just fulfilling that right partly & fixing a time frame. Nobody , no constitutional functionary is higher than Indian citizens , nobody's privileges or any laws prevailing over the fundamental rights & duties of Indian citizens is constitutional , just or legal . The shame is that even after 60 years of independence , FUNDAMENTAL RIGHTS & DUTIES OF INDIAN CITIZENS is observed more in breach than implementation , by our public servants including the judiciary . Hereby , we urge all the public servants – judges , police , people's representatives to honour RTI ACT , to honour Indian citizen's fundamental & human rights and to facilitate them to perform their fundamental duties. The silence of public servants to the questions asked or vague answers , ruses by public servants amounts to confessions , agreeing to the questions , charges leveled & crimes committed . Let the TRUTH prevail. Jai hind. Vande mataram. Your's sincerely, Nagaraj.M.R. Judiciary under RTI Act, says parliamentary panel New Delhi, April 29 A parliamentary committee today held that judiciary comes under the purview of the Right to Information law with regard to all activities of administration except "judicial decision making." "Except the judicial decision making, all other activities of administration and the persons included in it (judiciary) are subject to RTI Act," said the report of the Parliamentary Standing Committee on Personnel, Law and Justice. The opinion of the committee headed by E.M. Sudarsana Natchiappanan comes against the backdrop of a raging controversy over whether the judiciary comes under the RTI purview. Chief Justice of India K.G. Balakrishnan had recently said the CJI is a constitutional authority and does not come within the purview of the RTI Act. The committee, which went into the demands of grants for the personnel ministry and discussed the interpretation of Section 2 (h) of the RTI Act, that is, definition of public authority, said the provision is very clear that all constitutional authorities come under the definition of public authority. The committee had examined in detail every clause of the RTI Act, 2004 and was conscious of the fact that all wings of the state, executive, legislature and judiciary, are fully covered under this Act since all organs of the state are accountable to the citizens of India in a democratic state. "It is more so since the judiciary is having a dual role as (i) administrative function and (ii) judicial decision making. AN APPEAL TO HONOURABLE CENTRAL INFORMATION COMMISSIONER , NEW DELHI & STATE INFOR MATION COMMISSIONER , BANGALORE. We at e-voice of human rights watch has requested for following information ( ANSWERS TO THE FOLLOWING QUESTIONS ) from honourable CHIEF JUSTICE OF INDIA , SUPREME COURT OF INDIA , NEW DELHI , UNION HOME SECRETARY , GOI , NEW DELHI , DG&IG OF POLICE , GOK , BANGALORE , COMMISSIONER , BANGALORE DEVELOPMENT AUTHORITY , BANGALORE & COMMISSIONER , MYSORE URBAN DEVELOPMENT AUTHORITY , MYSORE , as per RTI Act . All of them have failed to provide complete truthful information to us. Full Case details are given at following web page, RTI APPEAL TO HONOURABLE CHIEF JUSTICE OF INDIA , SUPREME COURT OF INDIA http://crosscji.blogspot.com/ , http://crossexamofchiefjustice.blogspot.com/ , http://crimesofsupremecourt.wordpress.com/ , http://crosscji.wordpress.com/ , http://crossexamofchiefjustice.wordpress.com/ , RTI APPEAL TO UNION HOME SECRETARY , GOI , NEW DELHI http://crosscji.blogspot.com/ , http://crossexamofchiefjustice.blogspot.com/ , http://crimesofsupremecourt.wordpress.com/ , http://crosscji.wordpress.com/ , http://crossexamofchiefjustice.wordpress.com/ , RTI APPEAL TO DG&IG OF POLICE , GOK , BANGALORE http://crosscji.blogspot.com/ , http://crossexamofchiefjustice.blogspot.com/ , http://crimesofsupremecourt.wordpress.com/ , http://crosscji.wordpress.com/ , http://crossexamofchiefjustice.wordpress.com/ , RTI APPEAL BDA COMMISSIONER , MUDA , MYSORE http://crimesofmuda.blogspot.com/ , http://manivannanmuda.blogspot.com/ , http://crimesatmudamysore.wordpress.com/ , RTI APPEAL TO BDA COMMISSIONER , BDA , BANGALORE http://crimesofbda.blogspot.com/ , http://bdacrimes.wordpress.com/ , Hereby , we do once again request you to order the said public servants - to comply with RTI Act & to provide the full information to us at the earliest. JAI HIND. VANDE MATARAM. Your's sincerely, Nagaraj.M.R. INDIAN JUDICIAL & LEGAL SYSTEM INDIRECTLY IN THE CLUTCHES OF MAFIA In India , justice , equality & democracy an illusion . all those words are only there is in statuette books , but not in practice . the rich & mighty crooks are committing gravest crimes & escaping from the hands of law by manipulating evidences , by bribing the public servants to create favourable government reports , records. Poor people who have suffered injustices are not getting justice due to lack of evidences & government reports , records to prove their case. CORRUPTION IS THERE RIGHT FROM GOVERNMENT MATERNITY HOSPITAL UPTO GRAVEYARD , THROUGHT THE WALK OF ONE'S LIFE. The corrupt public servants are more cruel , damaging criminals than our previous british oppressors or dawood ibrahim & other under world dons. The gravest threat , damages to india's security & national integrity is more from these corrupt public servants than Pakistan or china or other terrorist outfits. These corrupt public servants can stoop to any level in their greed for money. The present state affairs is a shame to our political & legal system and a barometer , indicator to their efficiency. Recently , we have seen in the media , how people of bihar meated out mob justice to a criminal , that will be the fate of corrupt police , doctors , other officials in the future. But the violence is not the answer , that will only lead towards anarchy. We must establish true democracy of bapuji's dreams , true freedom , equality for all in practice for which so many of our fore fathers , freedom fighters sacrificed their life for. THE ANSWER LIES IN ACCOUNTABILITY OF PUBLIC SERVANTS , ALL CONSTITUTIONAL FUNCTIONARIES INCLUDING JUDGES , TO THEIR PAY MASTERS - MONARCHS OF DEMOCRACY ie CITIZENS OF DEMOCRATIC INDIA. Hope this will dawn on our public servants that they are PUBLIC SERVANTS NOT PUBLIC MASTERS. Failure of RTI Act in India - In the clutches of corrupt public servants mafia In the courts of law , every statement to be valid must be supported by evidences. That too, the statements of public servants / government officials & their reports in government records are considered as sacrosanct , the ultimate gospel truth by courts of law. The corruption has spread it's tentacles far & wide in the public service. The bribe booty is shared by lower to higher officials. If an official is complained against , his higher official conducts a formal investigation & reports in the record that lower official is not guilty. The vigilance authorities / Karnataka lokayukta has recently raided on police , tax officials & seized illegal wealth amounting to crores of rupees. Take the recent case where in senior IPS officer , superintendent of police chamarajanagar , mr.srikantappa was arrested by Karnataka lokayukta. The victims spoke to media that he used to threaten them with false cases. In this way , how many victims / innocents were arrested & tortured by his arrest warrants ? how many innocents suffered in false cases ? how many rich criminals got scot free , by srikantappa's filing of B reports leading to closure of cases ? In the past how many suffered by srikantappa's actions ? has the court subjected to review all the previous actions of srikantappa throught his corrupt career ? if not , why ? The courts of law has taken the official reports , records of mr.srikantappa as gospel truth & indirectly aided rich criminals & harmed innocents. It is the same case with respect to reports of all government officials � police , labour , tax , etc. the rich criminals buy out government officials & make them write favourable report about themselves. Whereas the poor , innocents suffer from adverse reports & injustices. The courts of law takes the government records at it's face value & meat out injustices to the poor , innocents while aiding the rich criminals. When a commoner requests for information as per RTI Act , the government officials either give incomplete information , false information or decline to give information under one pretext or the other. The officials are damn sure that the truthful information will be detrimental to themselves & will be taken as evidence against themselves in the courts of law. So information , truth is not given. Even information commissions are failing here. Thereby, the public are denied to seek justice in the courts of law , by lack of evidences. The courts of law before accepting the records of government officials , must subject it to a "test of truth". When a government report is contested against , a fact finding team comprising members of public , complainant , respondent & the court , must check it out at the ground level. Orelse when a complainant says that the report of a government official � police , labour , tax , etc as false that government official must be subjected to lie detector test , narco-analysis, ertc by court of law. The questionnaire ie the questions to be asked during the scientific test are to be prepared with feedback from both complainant & respondent's side. In that way , impartially truth can be found out. After all , the objective of courts of law is "Quest for Truth", not just giving out judgements based on reports of corrupt officials. Nowadays , we are even seeing reports of corruption among the judiciary itself. If a complaint against a judge is made out that a level ground is not provided to put up one's case in the court or cross examination of one party is not allowed or lie detector test / narco analysis of one party is not allowed ( in turn taking the lies of that party as truth ), the judge making a varied interpretation of law, the judge not safe guarding the health & life of the complainant in the custody of police leading to 3rd degree torture of complainant by police , etc, in all such cases the supreme court of India must change the presiding judge of such cases , the cases must be thoroughly reviewed & the guilty judge must be subjected to narco-analysis , lie detector test , etc & legally prosecuted. In this back drop , accountability of police & judges to the public ie citizens of India � kings of democracy , is a must. After all , the kings of democracy / citizens of India / taxpayers are the paymasters of all public servants. We at e � voice of human rights of watch have utmost respect for the judiciary & all government institutions. It is the corrupt few in those institutions who are themselves bringing disgrace to the august institutions they occupy , by their corrupt deeds. The saving grace is that still honest few are left in public service & it is an appeal to them , to legally prosecute their corrupt colleagues. In India , the private enterprises are the wealth creators of our economy. However , some private enterprises are violating labour laws , tax laws , human rights & fundamental rights of people. In turn harming the public , looting the tax dues. This is creating black money causing various social evils in the society. These huge private enterprises take loans from public sector banks ie take public's money as loans , collect money from public in the form of shares , debentures , sell their product to the public. Still , they are not covered by RTI Act, they don't give truthful information to the public nor allow public inspection of their sites , why ? they buy out concerned government officials & gets them to write favourable report about themselves. There are wide differences between the ground reality & these government reports. If the aggrieved person , victim of injustices meated out by these private enterprises , tries to legally seek justice, these criminal private enterprises buy out police , concerned officials & fixes up the victim in false cases. The police in total disregard to law violates the human rights & fundamental rights of the victim in custody , subjects the victim to 3rd degree torture in custody. The presiding judge of the case doesn't safe guard the rights , health , life of victims in custody. The judge doesn't check out the truthfulness of government reports & passes on judgement making varied interpretation of just remember the case of "local citizens vs coca cola company" in plachimada , kerala. Is it not right & just in such cases , to subject the presiding judge , police , concerned government officialds & most importantly key officials of that criminal private enterprise to lie detector , narco- analysis tests , to know the truth ? is it not right to conduct the inspection of alleged site , review of all company's records , by a team comprising of members from public , court , complainant & respondent ? Some of these criminal enterprises threaten to finish off the poor victims . as these company's have money power they can buy out rowdies , police & capable of doing anything. In such cases , if anything untoward happens to the victim or his family , are not the officials of such criminal enterprise liable to pay compensation to the victims's family or survivors ? In India , do we truly have democracy & freedom ? is this corrupt India � what our freedom fighters dreamt of & fought for ? History of Corruption in Indian Judiciary since Independence: 1947 - 2003 1949: Mr. Justice Sinha only Judge impeached; courtesy Good Judges & Constitution Framers: Our Fore-Fathers represented by Constituent Assembly of India framers of Constitution of India then in 1949 (year before Consitution came into existence) impeached Mr. Justice Sinha; finding him "guilty of improper exercise of Judicial functions, the cumulative effect of which was to lower the dignity of his office and undermine the confidence of the public in the administration of justice…" [008.07]. Such/ similar acts/ behaviours by whom-so-ever including Judges is since 1971 is covered as an act of Criminal Contempt of Court [041.05 ]. Not a single Judge is either Impeached or hauled-up for Contempt till 1991. Peoples' Inner Hope Courts to maintain their Majesty & Dignity will prosecute 1000 Judges in context, who have tarnished & undermined the Fair image of Judiciary. Let Judges relish Jail for months if not years ; to asses personally the convinences-N-comforts provided even to innocent citizens or persons who were not having Rs. 100 to give as Bail. Then they will be in better position to Transform Jails into Reformation Centres. Jailing corrupt Judges by Judges , we hope will instill confidence of people in Courts & law. Who-is-who of India then only will scare to get into any scam nor Criminals will think of becoming Legislators. 1979 : Chief Justice Mr. K. Veeraswami ; Chief Justice of India permitted Central Bureau of India to file case of Dis-proportionate of Income / wealth against Chief Justice Madras High Court Mr. K. Veeraswami ( father-in-law of Mr. Justice V. Ramaswami ). 30 years elaped. Sheltered by Courts' easy-go-tactic. [049.04] [059.05 ] 1991-93: Mr. Justice V. Ramaswami ( son-in-law of Chief Justice Mr. K. Veeraswami [049.04 ] ) : SAWANT COMMITTEE REPORT had held he is guilty of several charges. Supreme Court of India also upheld guilty of 3-4 charges ; & recommended to Parliament for further action. Parliamentarians failed in their Duty to Impeach the Sitting Judge of Supreme Court Mr. Justice V. Ramaswami ; not rising to the Heights of Eminent Constitution makers ; but chose to have unholy alliance with Corruption in Judiciary vis-a-vis Legislature & Government.[008.00 ]. Supreme Court which upheld Charges of Mis-Behaviour also , we opine , failed to prosecute him under Contempt of Court Act & relevant Laws . It also failed " To Do Complete Justice" by invoking Article142 . Criminal Judge was allowed to go scot-free; both by Parliament & Supreme Court ! Good precedent for other Judges ? If so What kind of message to we-innocent-Citizens ? For almost complete proceedings in SC & Parliament: [008.00 ] 1995 A.M. BHATTACHARJEE: The chief justice of the Bombay High Court was forced to resign in 1995 after it was found that he had received Rs.70 lakh as book advance from a publishing firm known to have links with the underworld. 1996 AJIT SENGUPTA: The Calcutta High Court judge made it a routine to issue ex parte, ad interim stay orders on anticipatory bail pleas from smugglers having links with the Mumbai underworld. He was arrested in 1996 for FERA violations after retirement 1994 to 1997: A.M. AHMADI: When he was Chief Justice of India (October 1994-March 1997), his daughter, a lawyer in the Delhi High Court, caused eyebrows to be raised for getting "special" treatment from certain judges. When some members of the bar sought a resolution banning lawyer relatives of judges from staying in the same house, the CJI got members to defeat the motion. 2000 A.S. ANAND: As Chief Justice of India. (a) He was accused of using his position to get the subordinate judiciary to rule in favour of his wife and mother-in-law in a suit that had been barred by limitation for two decades.For more: [049.05] [049.05A] [049.05B] [049.05C] [049.05D] [049.05E ] called as TANGLED PLOT. Also read Ram Jethmalani's " BIG EGOS, small men ". (b) Supreme Court , while he was CJI,directed a CBI probe after a dispute arose over his age in 2000. The investigation report was not made public.This arose due to scan copy published in Ram Jethmalani's " BIG EGOS, small men ". 2002: SEX FOR ACQUITTAL In November 2002, Sunita Malviya, a Jodhpur-based doctor, alleged that a deputy registrar of the Rajasthan High Court had sought sexual favours for himself and for Justice Arun Madan to "fix" a case in her favour. Justice Mr.• Arun Madan . Case of Lady Sunita Malviya.STATUS: A committee set up by former CJI G.B. Pattanaik found prima facie evidence against Madan, who does not attend court anymore. Judge Resigned CASH-FOR-JOB :Three judges of the Punjab and Haryana High Court sought the help of disgraced PPSC chief R.P. Sidhu to ensure that their daughters and other kin topped examinations conducted by the commission . Judges are M.L. Singh , Mehtab Sing Gill & Amarbir Singh STATUS: Two inquiry panels indicted the judges. Gill and Amarbir Singh have resigned M.L. Singh continues, though no work is allotted to him. 2002-03: 3 Judges Mysore Sex Scandal ( alleged ) : On Sunday, November 3, 2002, three judges of the Karnataka High Court, along with two women advocates, allegedly got involved in a brawl with a woman guest at a resort. The police arrived but reportedly didn't take action. Judges are N.S. Veerabhadraiah , V. Gopalagowda &• Chandrashekaraiah .STATUS: The three-judge inquiry committee appointed by the CJI filed its report. Gave clean chit. March 2003 - Delhi High Court Judge resigns: Suspected of collusion with Property Developers. Raids by CBI on corrupt higher officials in Delhi Development Authority (DDA), found Draft Judgement-N-Court Records ________________________________________ E(I)nquiry-in-camera or In-House Inquiry was & is contrary to Law . Is ultra vires Article 14 of Constitution of India: " The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India" Following Questions / Issues, inter alia , arise ( a ) Enquiry in-camera was held contrary to the observations made by, Constituent Assembly of India in 1949. In its' Impeachment Order had held thus:"While we are alive to the desirability, in the interests of the public, of investigating charges against a Judge in open court, we held the Enquiry in-camera in view of the allegation made in the affidavits and the circumstances of the case. This mode of proceeding should not, however, be regarded as a precedent." [008.07 ]. ( b) In the case of similar In-House Inquiry held under the Orders of Chief Justice of India in Jusice V. Ramaswami's case , Justice Ramaswami had held that " Inquiring Committee" as well as " Inquiry" have no basis & force of law. It is reflected in the Report , which was read-out by CJI to Advocates & publicised , submitted by 3 Judges Committee thus" Indeed Justice Ramaswami had made it clear to the Chief Justice that he did not recognise any such Jurisdiction in any body or authority." (c) It will not be out-of place to mention here that Two of "Three Judges Committee " appointed by CJI in Re. V. Ramaswami's case are alleged to be involved in Judges Plot 4 Plot.[014.00]. It is like Criminal investigating another criminal . ( d ) If so how sure can we be that " 3 Judges Committee " appointed to invetigate " 3 Judges Mysore Sex Scandal " were un-biased or were above Board & have presented an accurate Report ? Queries to Supreme Court , Parliament of India & Central Government In Re. Judges' Mysore Sex Scandal ( a)" Will the Supreme Court Publicise Report of " 3 Judges Committee " ( all & sundry material); morefully to know whether any evidence adduced by many in support of Scam is informed to CJI & Supreme Court ? (b) What is the Guarantee that despite prima facie evidence Judges of Supreme Court which consists of Few corrupt Judges seved in Karnataka are not inclined to take stern action ? (c) Investigation of a Crime comitted by Minister or anyone lies within Executive Domain like the case Justice K.Veeraswami, in this case CBI . Is it not a case of hushing-up & messing-up of " 3 Pillars of Constitution " ?. (d) How long will you try keeping suppressed Crimes of Judges of Supreme Court & High Courts when Union Law Minister Mr. P. Shiva Shankar , on 28th Nov.1987 said " Supreme Court is filled with FERA violators & Bride Burners…" ( AIR 1988 SC 1208 ). When Chief Justice Of India Justice E.S. Venkataramaiaha admits that "in every High Court there are 3-4 Judges who are out every evening to Party in Foreign Embassiies or at Advocates' places…drink…dine…" (1990 Cr LJ 2179 ) [041.09]. (e) 20% of Judges are corrupt , indirectly said Chief Justice of India Mr. Justice S.P. Bharucha , in other words admitted that 80% of Judges of India are not corrupt & are above board to be bribed or influnced ? Then why cases are not filed against 20% of Judges ? ________________________________________ LOSS of Confidence in Judiciary : The Actions & Inactions of Supreme Court trying to suppress crimes of Judges has resulted in We, the People of India losing confidence in Courts & given rise to a Question whether at all People of India's Fundamental & Statutory Rights are safe in present set of Judges & Courts and Laws Governing thereof ? Conscience of Judiciary Shaken: Supreme Court of India: "Police Raj" it said when Judges all over India went on a kind of strike; for the reason that a District Judge in liquor prohibited Gujarat State in 1991; drunk & misbehaved , police acted as per law or so. Conscience of Judiciary was shaken the Court claims. What was it to do with Judges all over India? Have they ganged-up as One to help each other & continue crimes but still go unpunished? Punish Dutiful Police? "Police Raj" to "Judges Tyranny": Judges serving all over India have formed an Assocition called " All India Judges Association ". At the time when One Party System in Parliament managed by Congress was to give way to Multi-Party System (1989 & 1991 General Elections); Supreme Court gave Judgments in 1992 & 1993 upholding that Judges of subordinate courts of India are not Employees. They are like Ministers / M.L.A.s but not on par of Civil Servants [037.02][037.02A ]. Inter alia Court said Central Govt. should set-up " All India Judicial Services " & " National Judicial Pay Commission ". Supreme Court continuously monitored to see that Pay Commission (FNJPC) is constituted but failed to monitor setting-up of All India Judicial Services [055.02 ]. What Judges want is more Liberty / Perks / Powers but no liabilities / Duties. Un-bridled they want to be as Judges of Supreme Court & High Court. FNJPC was also given power to give Interim Relief to Judges. Non setting-up of National Judicial Academy [008.15 ] & All India Judicial Services is nothing but Fraud on Constitution & Supreme Court Criminal Politicians Vs Criminal Judges : Hats off for the Judgment of Supreme Court striking-down of Parliamentary Act amending Representatives of Peoples Act. Court said Come Clean Mr. Politicians in relation to diclosure of their Criminal , Financial & other such antecedents so as to help electorate of India to decide whether to vote for good or bad person in elections. But this 50 years belated Judgment came as Bolt from Blue to politicians. In this perod Aliens, Anti-nationals, Criminals & all sundries had a field Day. But then What about Criminal / Corrupt / Judgment-for-Sex Judges ?: The Supreme Court was unanimous in the Judgment of corrupt politicians. Parliament is not unanimous to Bridle Judges or judiciary. Nor is the Supreme Court ready to find ways & means to Tame / Terminate / Jail the Corrupt / criminal / Judgment-for-Sex Judges. Such inactions of Supreme Court or High Court is nothing short of giving leverage to such of them. It looks as though Supreme Court on its own is eroding faith of Public in Judiciary as a whole. Like Termites these Judges are Constitutional-Enemies-Within-India who are bent upon to disseminate corruption among other Good Judges. India: Time to end the lethal lottery of India's death penalty system (New Delhi): The first major study into India's legal judgements on death penalty cases has revealed that the system is riddled with fatal flaws and that the only remedy is to abolish the death penalty completely, said the study authors in New Delhi today. Amnesty International believes that at least 140 people have been sentenced to death in 2006 and 2007. According to the latest available official figures, there were 273 persons on death row as of 31 December 2005. But this figure is likely to be considerably higher today. The fate of these death row prisoners is ultimately a lottery. In the first comprehensive analysis of around 700 Supreme Court judgements on death penalty cases over more than 50 years, the authors expose a judicial system that has failed to meet international laws and standards relating to the death penalty. Amnesty International India and the People's Union for Civil Liberties (Tamil Nadu & Puducherry) have issued the study, Lethal Lottery: The Death Penalty in India, A study of Supreme Court judgments in death penalty cases 1950-2006. It is the first to examine the essential unfairness of the death penalty system in India by analysing evidence found in Supreme Court judgments of abuse of law and procedure and of arbitrariness and inconsistency in the investigation, trial, sentencing and appeal stages in capital cases. It demonstrates that: • the administration of the death penalty in India has not been in the "rarest of rare cases" as claimed in the country • on the contrary, there is ample evidence to show that the death penalty has been an arbitrary, imprecise and abusive means of dealing with defendants. Dr V Suresh, President, PUCL (TN & Puducherry) said: "While the death penalty continues to be used in India, there remains a danger that it will be used disproportionately against ethnic minorities, the poor or other disadvantaged groups. There is only one way to ensure such inequalities in the administration of justice do not occur: the complete abolition of the death penalty." Amnesty International welcomes the current hiatus of executions in the country. The relative lack of executions in the last decade -- one in 2004 -- illustrates that the people of India are willing to live without the death penalty. "India stands at a crossroads. It can choose to join the global trend towards a moratorium on the death penalty, as adopted by the UN General Assembly last year. It will also then join 27 countries in the Asia Pacific region which have abolished the death penalty in law or in practice. "Or it can continue to hang death row inmates, when the judicial system that puts them there has been shown by this extensive research to be unfair," said Mukul Sharma, Amnesty International-India Director. The full report is available at http://www.amnesty.org/en/report/info/ASA20/007/2008 and a summary, at http://www.amnesty.org/en/report/info/ASA20/006/2008 Background: The study of the courts highlights some of the main failings as: • Errors in consideration of evidence - most death sentences handed down in India are based on circumstantial evidence alone. In a 1994 Supreme Court appeal, the Court noted sarcastically that the main witness's memory constantly improved. His testimony at the trial three years after the incident was observed to be far more detailed than his confessional statement recorded a few days after. • Inadequate legal representation - concerns included lawyers ignoring key facts of mental incompetence, omitting to provide any arguments on sentencing, or failing to dispute claims that the accused was under 18 years of age at the time of the crime despite evidence to the contrary. • Anti-terrorist legislation - concerns include the broad definition of `terrorist acts', insufficient safeguards on arrest, and provisions allowing for confessions made to police to be admissible as evidence. • Arbitrariness in sentencing - in the same month, different benches of the Supreme Court have treated similar cases differently, with mitigating factors taken into account or disregarded arbitrarily. • In the Bachan Singh judgment of 1980, the Supreme Court ruled that the death penalty should be used only in the "rarest of rare" cases. More than a quarter of a century later, it is clear that through the failure of the courts and the State authorities to apply consistently the procedures laid down by law and by that judgment, the Court's strictures remain unfulfilled. A total of 135 countries have abolished the death penalty in law or in practice, having realised executions are unacceptable. In 2007, only 24 countries carried out executions (China, Iran, Saudi Arabia, Pakistan and the USA were the main five perpetrators, accounting for 88 per cent of all known executions). See http://www.amnesty.org/en/death-penalty Judicial nepotism rampant in India April 12, 2007 by CyberGandhi In the first step in the fight against judicial nepotism, the Law Ministry wrote to the Bar Council of India last month asking it to ensure that lawyers don't appear in cases before judges who are close relatives. However, it appears to have ignored the wider problem of what is called Son Stroke or Uncle Judge, where judges have close relatives practising in the same court. NDTV discovered that this trend, where two judges or a group of judges have children practising in each other's courts, is widespread. While not everyone takes advantage of what has been described as a mutual cooperative society, many of them do. This problem first surfaced in 2003, when the Bar Council of India demanded the transfer of all judges whose relatives practised in the same courts. A year later, BK Roy, then Chief Justice of the Punjab and Haryana High Court, issued an administrative order barring a group of 10-12 judges from hearing any case pleaded by each other's relatives. He quoted eminent jurist HM Seervai: "Experience shows that an impression is created in the public, however unjustified it may be, that it would be advantageous to engage a judge's son as an advocate." "It was generally believed that A, B, C and D (all judges) constituted a mutual co-operative society, in the sense was believed that each of the four judges (A, B, C and D) would protect the sons of the three other judges." The order sparked off a protest by judges in Punjab who took mass leave. Justice BK Roy was subsequently transferred, and since then, the order has been ignored. "Some relatives misuse their connections more blatantly than others, but the problem remains in principle. An especially acute feature of problem of nepotism as it exists here is that apart from relatives of high court judges, children of sitting Supreme Court judges from this region also practise here at Chandigarh." "The advantages, the benefits that accrue to them from their connections is well known to all and is fully exploited," said Anupam Gupta, Senior Advocate, Punjab & Haryana High Court. Recently an MP raised the issue of judicial nepotism again and claimed that out of 490 judges of the various High Courts and the Supreme Court, relatives of 131 judges are practising in the same court. Limited directive Finally, four long years after the issue was first raised by the Bar Council, the Law Ministry issued a directive. But it was confined to saying that no lawyer shall plead a case before a judge who is a close relative. It completely skirts the issue of close relatives of a judge practising in the same court - the Uncle Judge or Son Stroke syndrome. "There are complaints from all over the country that judges' children are practising in the same high court and that is causing grave problem in regard to handling of cases and the judges favouring and one judges son appearing before another judge," said M N Krishnamany, President, SC Bar Association. Judges are, in fact, expected to follow a code of conduct which points out that: "Close association with individual members of the Bar, particularly with those who practise in the same court, shall be eschewed." But is this distance really possible? "If your son, brother or sister is practising in the same court, you can't eschew close association with your son, daughter or brother." "Therefore, you should not be a judge in the same court; you should opt to be transferred to some other court where a close relative is not practising," said Prashant Bhushan, Member, Committee on Judicial Accountability. However, as figures show, this is clearly not the trend. In the Punjab & Haryana High Court, the relatives of eight sitting judges plead cases, while in Delhi High Court, the close relatives of nine sitting judges are practising lawyers. Also senior lawyers feel that the children of judges are often favoured. "That instances have come that a relation of a judge having joined only three four years in the practise suddenly his briefs are huge in number so that is what it is under scrutiny because he takes advantage of his position," said Jaganath Patnaik, President, Bar Council of India. "It is very clear also as I know personally so many judges in the High Courts their children are practising and are being pampered also," said M N Krishnamani, President, SC Bar Association. The public impression is that in order to get a favourable order, it's better to hire a close relative of a judge to plead your case. Now the questions that remain to be answered are can the Bar Councils keep a check on this practise and is the Law Ministry seriously concerned about ending nepotism? Ajmer Singh, Wednesday, April 11, 2007 (New Delhi), NDTV.COM Edited, printed , published owned by NAGARAJ.M.R. @ #LIG-2 / 761,HUDCO FIRST STAGE ,OPP WATER WORKS , LAXMIKANTANAGAR , HEBBAL ,MYSORE - 570017 INDIA … cell :09341820313 home page : http://groups.yahoo.com/group/naghrw, http://groups.google.co.in/group/hrwepaper/, http://evoiceofhumanrightswatch.wordpress.com/ , http://indiapolicelaw.blogspot.com/ , http://hrwpaper.blogspot.com/ , http://naghrw.tripod.com/evoice/ , http://e-voiceofhumanrightswatch.blogspot.com, contact : naghrw@yahoo.com , nagarajhrw@hotmail.com A member of AMNESTY INTERNATIONAL INDIA

5 comments:

Yogesh Saxena said...

MISUTILIZATION OF SOVEREIGN AUTHORITY
My sad Experience during Journey with a High Court Judge (Retd.)

Transgression of the discretion in misutilization of sovereign authority has perpetuated the erosion of very foundation, on which the sovereign power was assigned to a judicial officer.
The aforesaid observation is having a predominating character in order to protect the dignity of the judiciary as respect is never commanded rather it may act like a command in the conscience of the people.
Justice Shambhu Nath Srivastava( Now Retd.) is known controversial judge having criticism spread in every news paper for generating communal hatred with Muslim and on the other hand in the light of power assigned upon the judge of the Allahabad High Court, these judgement are beyond the pleading of issues raised and thereby these judgement are attributed even by the Ex-Chief Justice of India Justice V.N. Khare as one of the blot in the history of judicial institution. The people at large are govern by their sentiment and there is no literacy amongst the people as to appreciate the separation of the three power in a democratic setup people having the Hindu sentiment have regarded these judgement as the exposure of past history and the atrocities committed upon Hindu inhibition from the time of the attract by Muslims in 712 AD upto our independency as the revolution of the truth through the judicial verdict.
Thus natural affiliation develop amongst different sect of the people by reading the judgment on the issue of Madarsa, minority institution and the protection granted to the Muslim under the garb of their so called status of the minority, the other judgement declaring Geeta as a national epic required to be followed by every individual living in our country and the status of the deity having an endowment their upon as juristic person has been declared in deciding the Second appeal where only substantial questions formulated generated through pleading and evidence could have been decided in the normal circumstance. Thus the element of the jurisdictional scope of interference has been eroded by Justice S.N. Srivastava in all three judgments, which were delivered just at the verge of retirement by Justice S.N. Srivastava.
I was not aware that justice Srivastava has obtained the four security guard from the Govt. of U.P. on the recommendation of the High Court as he convey his apprehension for the threat of life in view of some mysterious letter received by him from the Muslim organization. Unfortunately on the repeated insistent of Shri Shailendra Kumar Singh now practicing at Allahabad High Court and the brief holder in the criminal side, I went at the residence of the Justice Srivastava and enquire as whether he may inaugurate the opening session of the Public School and unveil two deities at Kasba Bewar District Mainpuri. Justice Srivastava demanded not only convenience of vehicle for carrying him upto Bewar, but also asked to arrange vehicle for taking him to Nainital. He said it to Shailendra Kumar Singh on 25.6.2008 at his residence, only then he may attend the function scheduled on 29th June,2008. I persistently reminded to Justice Srivastava and also to my colleague Sri Shailendra Kumar Singh not to drag me in any controversial situation, in case both of you are not able to fulfill the respective commitment in this regard. I said so that I may attend my professional duty for conducting my argument in the cases fresh/unlisted/listed on 30.6.2008, which co-incidentally was happened to be opening day after the summer vacation of Allahabad High Court.
My experience indulging into argument on the point raised by Justice Srivastava has always been depreciated in respect of his super domination egoistic trend and a sort of authentic attitude of the judge, to which every Advocate dislike, but still I felt indebted regarding his contribution to society in respect of exposure of truth, which has vanish in judicial proceedings within duration of 15 years completing from the premises of judicial institution at Allahabad High Court.
Any way what I apprehended initially that I may not be trapped in my benevolent indulgence, became a truth. He has misused his official position to get the protocol of the sitting Judge by intimating the information to District Judge, Mainpuri and thereafter to avail the facility available to the inspecting Judge by getting the accommodation at circuit House Mainpuri on the expenditure of Govt. He got the security from the Mobile Van , who have started escorting him from his entrance time within the territorial jurisdiction of entire district Mainpuri. What he conveyed to Mr. Chaudhary Add. C.J.M. Mainpuri that he is sensing a conspiracy in bringing him to inaugurate the private function and as such deployed the Police force for escorting me through police personnel and the Police force. This has been done as a puncture has been there at Gursahaiganj. Where the Muslim population is in excess to the rest of the area of District Kannauj. I am strictly against mystification of the power through such Hippocratic manner, where the Judicial officers are instigated indulge in nepotism and corruption by the inspecting Judge, but they award good entry to corrupt officials, in spite their impropriator attitude towards the public. Now a Retd. Judge Justice S.N. Srivastava , to whom I provided my indulgence of taking him for inauguration of the Public School and to unveil the deity, has started doing it by bluffing the administration and I may listen his absurdity about the integrity of the Ex. Chief Justice of India as being appointed as an Arbitrator to resolve the dispute. Thus I disassociated my self from taking further participation in any one of Impropriator, as my conscience pricks as an Advocate of Allahabad High Court to remain associate in the activity, which is the mystification of the power by the Judicial authority, who ad horns the solemn chair of solidarity. Advocacy is not a Business- a Trade, nor a spokesman ship of the scoundrel in the Society, but a call of the learned person against injustice. I precluded myself from associating with Justice S. N. Srivastava from 28th June 2008th evening itself and did not stayed in the Govt. accommodation, but stayed with my nephew as I have been brought up in an honest atmosphere. Conquest of India says nothing about superiority of the Invaders, but it remain over weakness of characteristics, by virtue of it our country became slave Nation from its very inception of 712 A.D. onwards. Rampant corruption is ascending in disproportionate extends, and so for its galloping race could not be halted, even though thousands of acts and Ordinances have been promulgated after the dawn of independence. Now our character is eroding on basis of which our foundation of judicial institution have started shaking the integrity to get the collapse of the third pillar of Democratic System.

Yogesh Saxena said...

Our Last English Chief Justice Orby H. Mootham- ‘When Chief justice Mootham apologized to a litigant’. WHERE ARE THOSE JUDGES?
‘This reminiscences is relate back to the period of about last 50 years from the time of last English Chief Justice Orby H. Mootham, Those were the days’-. Compare it now; Right from the period of the English judges to the present scenario. It has been said that those judges were mature, modest and commanded the respect by their very entry in the courtroom. ‘When Chief justice Mootham apologized to a litigant’. Chief justice Mootham entered the court smilingly, but became tense and pointed out to the Bench Secretary for the impropriety of behavior of a litigant, a gentle man who was sitting in the fifth or sixth row wearing a head-gear. The gentleman has removed his cap. The moment the functioning started, the chief justice regained his usual pleased posture, but the irritation was again visible, when he saw the gentleman recapped his head. However, when the orderly went towards the gentleman he voluntarily removed his cap. This was perhaps by reflexes that he wore the cap once again. The chief justice stopped functioning and asked the court officer to act upon and thereafter the gentleman was asked to leave the courtroom. It was per by chance that one contemporary Advocate went to chief justice’s chamber to make a mention. Justice Gyanendra Kumar was present in Hon’ble Chief justice chamber. The chief justice in a most inimitable style asked, whether he had seen the gentleman, who despite been told not to wear the cap, defied the advice of the bench secretary. The Chief Justice has also said that the gentleman looked a dissent person, but he wandered why he repeatedly wore his cap soon after removing it. Was it by the defiance to authority of the Court?
Justice Gyanendra Kumar, a very pleasant conversationalist, intervened. He said "Chief Justice", your lordship in the English society, people take off a hat to show courtesy, but we in this country wear a cap to show our respect. Thus the gentleman was only trying to repeat his gesture of respect. The chief justice perhaps never knew it otherwise this was not causing irritation to him. The tall person, the chief justice broke into laugher and asked the bench secretary to trace and bring the gentleman in his chamber. Perhaps the gentleman was still out side the chief justice chamber. As soon as he entered, the chief justice expressed regret to him and pleaded his ignorance that the cap is worn to show respect. Soon, the gentleman after being happy from the reprimand made by the chief justice was again called to request him to be in the courtroom soon after the lunch. Justice Gyanendra Kumar was curious as to why the chief justice was insisting to have the gentleman in court. On being inquired the chief justice Mootham observed:- " He has been reprimanded in court by me and therefore he deserves an apology from chief justice in the court itself. Later the chief justice apologized in court itself. This has been never seen or heard by any judge about such gesture even to a lawyer when there is no good ground for reprimand." HOW CAN SUCH A JUDGE, THOUGH HE RETIRED IN 1961 CAN GO OUT OF MEMORY OF THOSE WHO HAVE SEEN HIM WORKING IN COURT AND OUTSIDE”?
There gesture of kindness to the lawyers and courteous dialogues used to blush out of their modesty even if their faces looked red and they were scared in the moment. They entered the courtroom right at 10.00 A.M. never before or a second afterwards. The chief justice was so cordial, warm and affectionate that this was the etiquette of high constitutional functionaries. The unusual dissent conduct with a strange warmth decency of Chief Justice Mootham was continued to remember even after his death to heavenly abode from this world.
"Every Act and every inquiry and similarly every action and pursuit, given by him was thought to aim at some good, and for this reason, the good has rightly been declared, to be that, at which all things aim. But a certain difference is found among ends". For him "For best was he who knows all things himself good, he that hearkens when men counsel right. But he who neither knows, nor lays to heart another wisdom, is a useless night".
"Life is a shylock; always it demands. The fullest usurer’s interests for each pleasure Gifts are not freely scattered by its hand. We made returns for every borrowed treasurer. Each talent, each achievement and every gain me necessitated some penalty to pay. All you bestow on causes or on men of love or hate of malice or devotion somehow and sometime shall be returned again. There is no waste toil, no lost emotion. The motto of the world is to give and take. It gives you favour out of sheer goodwill but unless a speedy recompense you make you will find yourself presented with its bill". "Competition is a struggle for existence because there is always be survival of the fittest".
Justice Raghubar Dayal, an Advocate has written this that he open his submissions by using a phrase from the privy council’s judgement without referring to it. He said that the learned District Judge has carved out an new case for which no place was found in pleading! Justice Raghubar Dayal did not open the file and remarked - if counsel have learned to use this kind of language so early in life, he would land himself in disaster. Advocate immediately apologized. He said that he has escaped his lordship wrath and will have a chance before another judge, but justice Dayal said to him that he might present in the courtroom at 10.00 A.M. as this case will be taken as part heard case. Justice Dayal was tensed and his earlier day’s annoyance was apparent. Advocate said that he was relying Privy Council judgement where the judicial committee has used the same language. He said that he was conscious that he did not know English to well, yet he use such word, which were used by Privy Council. Justice Dayal admitted the appeal, but refuse to exercise discretion for staying the decree for demolition. He has written that his indiscreet use of language cause lost to his client. The house of the client was demolished but Advocate has written that he has repented this incident through out his life as to find out where he was wrong. Justice Raghubar Dayal, who retired in 1960 as the judge of Supreme Court, still had the great respect from Advocate, as he never committed such mistake through out his life.
With regard to Justice and injustice to an individual’s opinion assessments, we must consider the kind of action. It’s means and the justness for considering its effect and solution. Thus the justice is always represent in corresponding sense. An advocate’s world is to convey the idea generated through such experiences with the same precision Ideologically some time antagonistic to his own opinion, but from its very inception of the correct analysis of his perceptions with the desire, aptitude and knowledge in adequate representations. This is a heterogeneous conglomeration of disparate and desperate interests designed mainly hedge against common enemy on both the constituents. .The cultivation of moral foundations is called our cultural heritage.
Yogesh Kumar Saxena
Advocate, High Court
H.I.G.203, Preetam Nagar, Sulem sarai, Allahabad-211001
yogrekha@gmail.com, yogrekha@rediffmail.com, yogrekha@yahoo.co.in
Founder President- World Citizenship Group Foundation, Swami vevekanand world ethical foundation,
Executive Member- World Parliament Experiment conference 2008 at Bonn (Germany),
Vice President- Geeta Asharam International Cheritable Trust, Rishikesh, Pauri Garhwal
Ex Vice President- Advocate’s Association, High Court, Allahabad
Special Counsel/ officer, Ganga Pollution Matter, High Court, Allah

Anonymous said...

Complaint in respect of functioning of Justice Dr. B.S. Chauhan in respect of his functioning as Allahabad High Court Judge, Now elevated as Chief Justice of another High Court
To,
My lord The Chief Justice Of India,
Hon’ble Supreme Court Of India,
New Delhi
Reference:- The Division Bench presided over by Hon’ble Mr. Justice Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta has decided the special appeal No. 1369 of 1999 wholly without Jurisdiction , as the jurisdiction to hear and decide the same on 26.10.2006, the listed special appeals for the year of 1999 for hearing including the bunch cases was conferred by the authority of Hon’ble Chief Justice to the division bench presided over by their lordships Hon’ble Mr. Justice R.K. Agrawal and Hon’ble Mr. Justice Vikram Nath in Court no.2 Gupta under the prerogative and the authority of the Hon’ble chief justice in consonance with the requirement of Chapter V Rule 1 of Allahabad High Court Rules. It is submitted that the Special appeal no. 1369 of 1999 was not even listed in court no. 34, but since the record of the said special appeal no. 1369 of 1999 was summoned in furtherance of recall application filed in dismissed special appeal no 840 of 1999 by the bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta. There is a complete procedure prescribed for having the jurisdiction being conferred by Hon’ble the Chief Justice for deciding the special appeal and without any nomination being conferred to the particular Hon’ble Division Bench by the specific order of Hon’ble Chief Justice, the jurisdiction conferred and allotted to them by the order of Hon’ble Chief Justice or in accordance with his lordship’s direction under Rule 1 of Chapter V of Allahabad High Court Rules, 1952 The judgement dated 26.10.2006 passed in Special Appeal 1369 of 1999 is contradiction to the order passed in special appeal No. 860 of 1999(Dismissed on 2.4.2004), special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004). All the Appellants filed their appeals against the same judgement, and the appellants of special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004)were also impleaded as respondents in present special appeal no. 1369 of 1999 and thus the judgement passed ex-parte in special appeal no. 1369 of 1999 on 26.10.2006 is passed against the principle of natural justice causing prejudice and barred by constructive Res- judicata
Subject:- Direction may be issued for deciding the matter pertaining to recall of order and judgement dated 26.10.2006 passed in Special Appeal 1369 of 1999 passed wholly without Jurisdiction by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta as the record of the said special appeal no. 1369 of 1999 was summoned in furtherance of recall application filed in dismissed special appeal no 840 of 1999 by the bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta, when the Special appeal no. 1369 of 1999 was not even listed in court no. 34 as the listed special appeals for the year of 1999 for hearing including the bunch cases was conferred by the authority of Hon’ble Chief Justice to the division bench presided over by their lordships Hon’ble Mr. Justice R.K. Agrawal and Hon’ble Mr. Justice Vikram Nath in Court no.2
The submission of the petitioner Prem Shankar Sharma, aged about 64 years, son of Sri Ram Bhajan Lal Sharma, , Lecture in English (Retired) in Ambika Prasad Intermediate College, Near Police station, Moradabad resident of Mohalla- Shuklan (Near Chaurasi Ghante of Mandir) Moradabad, District Moradabad in this regards are as under.
That the Petitioner was appointed as Lecturer in English in the institution on 9.8.1968. He was confirmed after completion of probation period on 9.8.1969. He was the member of Rashtriya Swamsevak Sangh and as such he was detained under the maintenance of Internal Security Act from 14.8.1975 to 30.3.1977. He was again detained under National Security Act (N.S.A.) on 1.11.1980 upto 10.12.1980 and despite the aforesaid preventive detention; the respondents paid the petitioner salary. That third time when on 11.7.1987 the petitioner went to Govt. Inter College, Moradabad to take training under the new education policy, he was detained under the provisions of Internal Security Act. That the petitioner was taking the training alongwith the principal of institution and one Khajan Giri and as such he told the Principal to inform the Manager about his arrest, but still the Manager wrote a letter on 24.7.1987 stating therein that the petitioner did not attend the college and was not present in the institution on 21.7.1987.That on 27.7.1987 the petitioner wrote a letter that he was arrested by the Police at the gate of Govt. Inter College, and had been lodged in district Jail Moradabad from 11.7.1987. This letter was sent through district Jail Moradabad and the same was communicated to the Manager, who sent the aforesaid letter to the D.I.O.S. Moradabad on 31.7.1987.That the members of Bhartiya Janta Party shown its resentment against the illegal detention of the petitioner and the news to this effect was published in Amar Ujala on 16.7.1987. Thus the management knew the fact regarding the absence of petitioner on account of unavoidable circumstances of his illegal detention, but still the allegation of absent from leave was leveled against the petitioner.That Sri Kameshwar Nath Mishra, Senior Lawyer of District Court Moradabad and the Vice-President of Committee of Management of Institution passed resolution on 15.7.1987 seeking bye cot of all the courts Moradabad on account of illegal arrest of petitioner. That still the resolution was passed on 4.9.1987 to give a notice to the petitioner as to why he remained absent from 11.7.1987 and sought for his explanation. The notice was sent to the petitioner in jail on 10.9.1987 stating therein that why his services should not be terminated. The explanation of petitioner regarding his absence being beyond his control as had been detained under the National Security Act and the earlier information sent to the manager on 27.7.1987 was not taken into consideration by the management. That the charges were in respect of previous detention for which the petitioner was paid his salary was also leveled as the first charge, while the second charge was falsely concocted, as the petitioner did not give any information regarding his detention, nor gave any leave application. The petitioner explained every thing in his letter dated 21.1.1988 and said that he is district Jail due to illegal detention and as such the absence of petitioner was beyond his control. The sole reason for the detention of the petitioner was that he was the District Secretary of Bhartiya Janta Party. That the petitioner was suspended, but the suspension order was revoked after 60 days. It is submitted that after being released from the preventive detention on 11.7.1988, the petitioner was directed to put his signature in the office of D.I.O.S. Moradabad, as the Management did not allow the petitioner to resume his duties. The petitioner was paid salary by the D.I.O.S. even after the preventive detention. That despite all such facts the matter was referred to the U.P. Secondary Education service Commission, Allahabad to whom petitioner sent a letter on 24.2.1989 seeking setting aside the proposal of the Committee of Management, but the one member committee who was not even authorized to conduct the enquiry recommended for termination of services of the petitioner and thereafter the U.P. Secondary Education service Commission, Allahabad on 28.7.1989 granted approval to the proposal for termination.That one member committee of O.N. Shah who remained Assistant Manager of the Committee of Management of the Institution on 17.5.1987 and was the Principal of S.S.K. Inter College could not be appointed as one member committee and his recommendation to dispense with the services to the commission were void-ab- initio and as such the subsequent order of termination dated 1.9.1989 on the baseless, misconceived and frivolous charges was liable to be set aside, which was done by the reasoned judgement passed on 11.8.1999 in writ petition no. 24443 of 1989.
The said judgement was challenged by the Committee of Management in Special Appeal no. 840 of 1999.That after the dismissal of special appeal no. 840 of 1999 when the recall application was filed without serving the copy of said application to the counsel for the petitioner, then the division bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta after going through the contents of the counter affidavit filed in the said application seeking recall of the order dated 23.11.2003, summoned the file of the special appeal no. 860 of 1999 (filed by Sudhir Kumar dismissed on 2.4.2004), the Special Appeal no. 907 of 1999 (filed by U.P. Secondary Education Service Commission dismissed on 14.9.1999) and also the record of pending present Special appeal no. 1369 of 1999, simply to ascertain the matter in consonance with the requirement as to whether the recall application filed on behalf of the committee of management may be allowed or the same may be dismissed in absence of any rejoinder affidavit to the allegations made in the counter affidavit filed by the petitioner. That the special appeal no. 840 of 1999 was dismissed as not pressed on 23.11.2003 by the Division Bench presided over by the Hon’ble Dr. B.S. Chauhan and Hon’ble Dilip Gupta, JJ. The aforesaid appeal was filed by the Committee of Management of Ambika Prasad Intermediate College, Moradabad challenging the judgement and order dated 11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai J in writ petition no. 24443 of 1989 (Prem Shankar Sharma Vs. State of U.P. and others). Thereafter an application for recall of the order dated 23.11.2003 purported to have been passed in the Special Appeal no. 840 of 1999 without annexing the judgement dated 23.11.2004 dismissing the aforesaid Special Appeal no. 840 of 1999 was filed without serving the copy of said application to the counsel for the Petitioner. That the Petitioner filed the counter affidavit in reply to the affidavit filed in support of the recall application. It was stated that the judgment can not be recalled by moving an application at belated stage and the copy of the same is not given to the counsel appearing on behalf of answering respondent. That it was further stated that the said application is filed without having any explanation regarding non-filing of application seeking condonation of delay. Thus the same is not maintainable and liable to be rejected. That it was further stated that the Special Appeal no. 860 of 1999 filed by Sudhir Kumar against the same judgement dated 11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai, J has been dismissed on 2.4.2004. This person Sudhir Kumar was inducted as the Lecturer in English after dispensing the services of the petitioner. However, when the writ petition no. 24443 of 1989 was allowed on 11.8.1999, then the services of Sudhir Kumar were terminated and as such he filed the Special appeal no. 860 of 1999, which was also dismissed and thereby reaffirming the judgement dated 11.8.1999. That the special appeal no. 907 of 1999 was filed against the same judgement passed on 11.8.1999 by Hon’ble Mr. Justice V.M. Sahai in writ petition no. 24443 of 1989, but that special appeal was also dismissed as misconceived and also being filed without any locus-standi by the judgment dated 14.9.1999.
That on 26.10.2006 the jurisdiction to here the listed special appeals for the year of 1999 for hearing including the bunch cases was conferred by the authority of Hon’ble Chief Justice to the division bench presided over by their lordships Hon’ble Mr. Justice R.K. Agrawal and Hon’ble Mr. Justice Vikram Nath in Court no.2. It is submitted that the present Special appeal no. 1369 of 1999 was not even listed in court no. 34, but since the record of the said special appeal no. 1369 of 1999 was summoned in furtherance of recall application filed in special appeal no 840 of 1999 by the bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta and as such only to ascertain the facts stated in the counter affidavit and in the affidavit filed in support of the alleged recall application, the records of three aforesaid special appeal was summoned, wherein the name of the counsel appearing on behalf of petitioner/respondent namely Sri Ashok Khare, Advocate was the only name mentioned in special appeal no. 1369 of 1999. That the Standing counsel was not prepared to argue the matter pertaining to the special appeal no. 1369 of 1999 filed by the State of U.P. in absence of the same not being listed in court no. 34 and in absence of Sri Ashok Khare, senior Counsel appearing in the said appeal on behalf of petitioner. This fact has been brought to the notice of the deponent by his counsel appearing in Special appeal no. 840 of 1999, which was dismissed on 23.11.2004.That the division bench presided over by Hon’ble Justice Dr. B.S. Chauhan enquired about the matter from Sri V.K. Singh Advocate appearing in special appeal no. 840 of 1999 and also enquired from the counsel for the respondent only about the controversy involved in all such special appeal out of which three special appeals were already dismissed while the special appeal no. 1369 of 1999 filed by State of U.P. was surviving. The counsel informed that the question as to whether a teacher while detained under Preventive detention could have been said to be voluntarily absenting from duty on the basis of which without affording any opportunity, the services of such teacher may be dispensed with in gross violation of the principle of natural justice and the case law relied upon in the judgement dated 11.8.1999 (state of Madhya Pradesh Vs. Rama Shankar Raghuvanshui A.I.R. 1983 S.C. 374), (M.H. Devendrappa Vs. Karnataka State in Small Industries Development Corporation. A.I.R. 1988 S.C. 1064), Sarnam Singh Vs. Smt Pushpa Devi 1986 (1) U.P.L.B.E.C. page 348 and Anukool Chandra Pradhan Vs. Union of India A.I.R. 1997 S.C. 2814, State of Orissa Vs. Dr. Miss. Bina Pani Dei and others 1967 (2) S.C.R. 625 (Para-9), Mohinder Singh Gill VS. Chief Election Commissioner 1978 (2) S.C.R. 272 (Para-9), State of West Bengal Vs. Anwar Ali Sarkar 1952 S.C.R. 284 followed in D.K. Yadav Vs. M/S J.M.A. Industry J.T. 1993 (3) S.C. 617 as well as the provisions of Regulation 35, 36, 37, 38, 39, 40, 44 and 45 read with section 16 (G) (3-A) as provided under Chapter III of the U.P. Intermediate Education Act, 1921 and rule 6 of rules framed under Act no. 5 of 1982 referred in the judgement dated 11.8.1999 were indicated as the controversy involved regarding unavoidable incident relating to the arrest under preventive detention, which is not pertaining to any criminal activity, but simply on account of participating into association under Article 19 (1) ( C) of the Constitution of India. The matter was not argued by the standing counsel, but in the judgment allegedly delivered on 26.10.2006, it has been falsely mentioned that the case was argued by the learned standing counsel appearing for the State Appellant. The counsel for the petitioner in Special Appeal No. 840/1999 Sri Yogesh Kumar saxena, Advocate informed the deponent that it was only Sri V.K. Singh, Advocate appearing in Special appeal No. 840/1999, who placed the controversy involved in his special appeal no. 840 of 1999.That on 1.11.2006, when the matter was shown to be listed in the cause list of court no. 34 regarding the delivery of the order in the recall application filed in special appeal no. 840 of 1999 then counsel for the petitioner was informed that since the special appeal no. 1369 of 1999 filed by the State of U.P. was also liable to be dismissed and as such it has been shown to be decided on 26.10.2006 in the cause list of 1.11.2006. That upto this time i.e. 1.11.2006 there was no existence of the order alleged to have been passed on 26.10.2006 in the special appeal no. 1369 of 1999 on the basis of which the recall application was decided as no order is required to be passed on this application, but subsequently thereafter when the message of dismissal of special appeal no. 1369 of 1999 was communicated to the petitioner, then counsel for the petitioner came to know about the existence of the order. He applied for the order in anticipation that the special appeal bearing special appeal no. 1369 of 1999, which was earlier filed as (defective) appeal no. 630 of 1999 might have been dismissed as there may not be the inconsistent order in the said appeal after dismissal of three special appeals filed against the same judgement, in which the committee of Management and Secretary U.P. Secondary Commission remained at the array of respondents and were duly represented by their respective counsels. That, although the order passed on 23.11.2004 dismissing the Special Appeal No. 840 of 1999 has been affirmed by the order dated 26. 10. 2006 passed on Recall application, as it has been noted that in view of the judgement passed in special appeal No. 1369 of 1999, no order is required to pass on the recall application. Thus it appears that even by this order passed on 26.10.2006, the Hon’ble Division Bench dealing with the recall application in special Appeal No. 840 of 1999 did not find any merit in the said appeal. The Hon’ble division bench Presided by Hon’ble Dr. justice B. S. Chauhan adopted a unique manner in deciding the present Special Appeal wholly without jurisdiction purported to have decided on the same day, to which no person could have decided in the open court on 26.10.2006, otherwise their was no occasion for listing of the case on 1.11.2006 in the cause list for appropriate order on the recall application filed in Special Appeal no. 840 of 1999. Thus the judgement passed in special Appeal is bad in the light of the legal fiction that what not be done directly in absence of jurisdiction, the can not be done indirectly by the Hon’ble Division Bench presided over by Hon’ble Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta in passing the judgement on 26.10.2006 passed in special Appeal No. 1369 of 1999.
That in this manner since the judgement passed in the special appeal no. 1369 of 1999 by the bench presided over the Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta is the judgment passed in absentia of the counsel of the petitioner/respondent appearing in the said appeal namely Senior Counsel Sri Ashok Khare, Advocate for the petitioner in writ petition no. 24443 of 1989, which was the only name printed as the sole name of the opposite party; and the same special appeal no. 1369 of 1999 was neither listed for hearing under the caption of the jurisdiction, nor there had been any serial number mentioned against the said listing of the special appeal, regarding which, the communication could have been made to the senior counsel Sri Ashok Khare, Advocate appearing on behalf of petitioner by the other counsel appearing in special appeal no. 840 of 1999 at the time of its dismissal on 23.11.2004. There was no jurisdiction conferred with the division bench presided over by Hon’ble Mr. Justice Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta to decide the special appeal of the year of 1999 as the jurisdiction of the same was conferred before court no. 2 under the prerogative and the authority of the Hon’ble chief justice in consonance with the requirement of Chapter
V Rule 1 of Allahabad High Court Rules. The judgement dated 26.10.2006 passed in Special Appeal 1369 of 1999 is contradiction to the order passed in special appeal No. 860 of 1999(Dismissed on 2.4.2004), special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004). All the Appellants filed their appeals against the same judgement, and the appellants of special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004)were also impleaded as respondents in present special appeal no. 1369 of 1999 and thus the judgement passed ex-parte in special appeal no. 1369 of 1999 on 26.10.2006 is passed against the principle of natural justice causing prejudice and barred by constructive Res- judicata as held in Sarguja Transport Service versus State Transport appellate Tribunal (1987)1 S. C. C. 5.( paragraph 7)

That it is submitted that there is the complete procedure prescribed for having the jurisdiction being conferred by Hon’ble the Chief Justice for deciding the special appeal and without any nomination being conferred to the particular Hon’ble Division Bench by the specific order of Hon’ble Chief Justice, the matter may not be decided by another coordinated Hon’ble Division Bench, except the Hon’ble Division Bench having the jurisdiction conferred to the different benches as per the circulation of cause list circulated to the Hon’ble benches and members of the Bar.
That the constitution of the benches as per the jurisdiction conferred and allotted to them by the order of Hon’ble Chief Justice or in accordance with his lordship’s direction under Rule 1 of Chapter V of Allahabad High Court Rules, 1952. The Registrar shall subject to such direction as Hon’ble Chief Justice may give from time to time caused to be prepare a cause list for each day on which the court sits containing the list of cases, which may be heard by different benches of court under Rule 6 of Chapter VI of High Court Rules, 1952.
That an application for expediting of hearing of case or for listing a case out of term or for removal of case to be tried and determined by the court under Rule 4 or for withdrawal of a case under Article 228 of the Constitution of India shall be laid before Hon’ble Chief Justice (or any other judge of a bench nominated by Chief Justice in respect of any case or class of cases) for orders. Thus for having an out of term hearing of a case, the application is required to be moved before the Hon’ble the Chief Justice.
That in this manner, it is crystal clear that if the case is not listed in the cause list after determination of heading for what purposes aforesaid matter is being listed, the other coordinate Division Bench dealing with other jurisdiction shall not be empowered to decide such case except by getting the nomination of the matter by the order of Hon’ble Chief Justice.
That the other aspect of the matter is pertaining to the determination of the reason for which a particular case is being listed in the cause list circulated to the bench and the members of Bar, the case may not be decided by any other coordinated Division Bench without it being posted for hearing.
That the Allahabad High Court Rules, 1952 have been promulgated in exercise of the power conferred under Article 225 of the Constitution of India and all other powers enabling it on that behalf. Thus the strict observation and compliance of mandatory provisions is required to be observed by the Hon’ble Court in consonance with requirement of Principle of equity, fairness and in such circumstances if the practice and procedure prescribed in this regard is not followed then the deviations from the rules of court may violate Article 14 of the Constitution of India.
That in the light of the aforesaid legal propositions advanced by the deponent / writ petitioner, it is submitted that the present special appeal without being listed in the daily cause list either under the separate serial number in the cause list, nor it remain listed with the appropriate heading ‘For Hearing’, but the same has been decided without giving notice to the counsel appearing for respondent.
That under the provisions of Chapter V Rule 1 of High Court Rules, 1952, the sole prerogative of the Hon’ble Chief Justice to decide the particular subject matter conferred on particular bench for particular period. If the decision of the subject matter by some other bench is taken up without being listed at the serial number under the heading of the hearing or without the case being Part-heard or tide-up, if the decision is given by the other bench without nominating by the Hon’ble Chief Justice the judgement will be without jurisdiction and nullity.
That, it is in the interest of justice that the order dated 26.10.2006 passed in Special Appeal no. 1369 of 1999 may be set aside and the Hon’ble Chief Justice refer the matter to Hon’ble Three Judges, as justice may be done with the rights of the applicant/petitioner.
Prem Shankar Sharma, aged about 64 years, son of Sri Ram Bhajan Lal Sharma, , Lecture in English (Retired) in Ambika Prasad Intermediate College, Near Police station, Moradabad resident of Mohalla- Shuklan (Near Chaurasi Ghante of Mandir) Moradabad, District Moradabad

Anonymous said...

Complaint in respect of functioning of Justice Dr. B.S. Chauhan in respect of his functioning as Allahabad High Court Judge, Now elevated as Chief Justice of another High Court
To,
My lord The Chief Justice Of India,
Hon’ble Supreme Court Of India,
New Delhi
Reference:- The Division Bench presided over by Hon’ble Mr. Justice Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta has decided the special appeal No. 1369 of 1999 wholly without Jurisdiction , as the jurisdiction to hear and decide the same on 26.10.2006, the listed special appeals for the year of 1999 for hearing including the bunch cases was conferred by the authority of Hon’ble Chief Justice to the division bench presided over by their lordships Hon’ble Mr. Justice R.K. Agrawal and Hon’ble Mr. Justice Vikram Nath in Court no.2 Gupta under the prerogative and the authority of the Hon’ble chief justice in consonance with the requirement of Chapter V Rule 1 of Allahabad High Court Rules. It is submitted that the Special appeal no. 1369 of 1999 was not even listed in court no. 34, but since the record of the said special appeal no. 1369 of 1999 was summoned in furtherance of recall application filed in dismissed special appeal no 840 of 1999 by the bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta. There is a complete procedure prescribed for having the jurisdiction being conferred by Hon’ble the Chief Justice for deciding the special appeal and without any nomination being conferred to the particular Hon’ble Division Bench by the specific order of Hon’ble Chief Justice, the jurisdiction conferred and allotted to them by the order of Hon’ble Chief Justice or in accordance with his lordship’s direction under Rule 1 of Chapter V of Allahabad High Court Rules, 1952 The judgement dated 26.10.2006 passed in Special Appeal 1369 of 1999 is contradiction to the order passed in special appeal No. 860 of 1999(Dismissed on 2.4.2004), special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004). All the Appellants filed their appeals against the same judgement, and the appellants of special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004)were also impleaded as respondents in present special appeal no. 1369 of 1999 and thus the judgement passed ex-parte in special appeal no. 1369 of 1999 on 26.10.2006 is passed against the principle of natural justice causing prejudice and barred by constructive Res- judicata
Subject:- Direction may be issued for deciding the matter pertaining to recall of order and judgement dated 26.10.2006 passed in Special Appeal 1369 of 1999 passed wholly without Jurisdiction by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta as the record of the said special appeal no. 1369 of 1999 was summoned in furtherance of recall application filed in dismissed special appeal no 840 of 1999 by the bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta, when the Special appeal no. 1369 of 1999 was not even listed in court no. 34 as the listed special appeals for the year of 1999 for hearing including the bunch cases was conferred by the authority of Hon’ble Chief Justice to the division bench presided over by their lordships Hon’ble Mr. Justice R.K. Agrawal and Hon’ble Mr. Justice Vikram Nath in Court no.2
The submission of the petitioner Prem Shankar Sharma, aged about 64 years, son of Sri Ram Bhajan Lal Sharma, , Lecture in English (Retired) in Ambika Prasad Intermediate College, Near Police station, Moradabad resident of Mohalla- Shuklan (Near Chaurasi Ghante of Mandir) Moradabad, District Moradabad in this regards are as under.
That the Petitioner was appointed as Lecturer in English in the institution on 9.8.1968. He was confirmed after completion of probation period on 9.8.1969. He was the member of Rashtriya Swamsevak Sangh and as such he was detained under the maintenance of Internal Security Act from 14.8.1975 to 30.3.1977. He was again detained under National Security Act (N.S.A.) on 1.11.1980 upto 10.12.1980 and despite the aforesaid preventive detention; the respondents paid the petitioner salary. That third time when on 11.7.1987 the petitioner went to Govt. Inter College, Moradabad to take training under the new education policy, he was detained under the provisions of Internal Security Act. That the petitioner was taking the training alongwith the principal of institution and one Khajan Giri and as such he told the Principal to inform the Manager about his arrest, but still the Manager wrote a letter on 24.7.1987 stating therein that the petitioner did not attend the college and was not present in the institution on 21.7.1987.That on 27.7.1987 the petitioner wrote a letter that he was arrested by the Police at the gate of Govt. Inter College, and had been lodged in district Jail Moradabad from 11.7.1987. This letter was sent through district Jail Moradabad and the same was communicated to the Manager, who sent the aforesaid letter to the D.I.O.S. Moradabad on 31.7.1987.That the members of Bhartiya Janta Party shown its resentment against the illegal detention of the petitioner and the news to this effect was published in Amar Ujala on 16.7.1987. Thus the management knew the fact regarding the absence of petitioner on account of unavoidable circumstances of his illegal detention, but still the allegation of absent from leave was leveled against the petitioner.That Sri Kameshwar Nath Mishra, Senior Lawyer of District Court Moradabad and the Vice-President of Committee of Management of Institution passed resolution on 15.7.1987 seeking bye cot of all the courts Moradabad on account of illegal arrest of petitioner. That still the resolution was passed on 4.9.1987 to give a notice to the petitioner as to why he remained absent from 11.7.1987 and sought for his explanation. The notice was sent to the petitioner in jail on 10.9.1987 stating therein that why his services should not be terminated. The explanation of petitioner regarding his absence being beyond his control as had been detained under the National Security Act and the earlier information sent to the manager on 27.7.1987 was not taken into consideration by the management. That the charges were in respect of previous detention for which the petitioner was paid his salary was also leveled as the first charge, while the second charge was falsely concocted, as the petitioner did not give any information regarding his detention, nor gave any leave application. The petitioner explained every thing in his letter dated 21.1.1988 and said that he is district Jail due to illegal detention and as such the absence of petitioner was beyond his control. The sole reason for the detention of the petitioner was that he was the District Secretary of Bhartiya Janta Party. That the petitioner was suspended, but the suspension order was revoked after 60 days. It is submitted that after being released from the preventive detention on 11.7.1988, the petitioner was directed to put his signature in the office of D.I.O.S. Moradabad, as the Management did not allow the petitioner to resume his duties. The petitioner was paid salary by the D.I.O.S. even after the preventive detention. That despite all such facts the matter was referred to the U.P. Secondary Education service Commission, Allahabad to whom petitioner sent a letter on 24.2.1989 seeking setting aside the proposal of the Committee of Management, but the one member committee who was not even authorized to conduct the enquiry recommended for termination of services of the petitioner and thereafter the U.P. Secondary Education service Commission, Allahabad on 28.7.1989 granted approval to the proposal for termination.That one member committee of O.N. Shah who remained Assistant Manager of the Committee of Management of the Institution on 17.5.1987 and was the Principal of S.S.K. Inter College could not be appointed as one member committee and his recommendation to dispense with the services to the commission were void-ab- initio and as such the subsequent order of termination dated 1.9.1989 on the baseless, misconceived and frivolous charges was liable to be set aside, which was done by the reasoned judgement passed on 11.8.1999 in writ petition no. 24443 of 1989.
The said judgement was challenged by the Committee of Management in Special Appeal no. 840 of 1999.That after the dismissal of special appeal no. 840 of 1999 when the recall application was filed without serving the copy of said application to the counsel for the petitioner, then the division bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta after going through the contents of the counter affidavit filed in the said application seeking recall of the order dated 23.11.2003, summoned the file of the special appeal no. 860 of 1999 (filed by Sudhir Kumar dismissed on 2.4.2004), the Special Appeal no. 907 of 1999 (filed by U.P. Secondary Education Service Commission dismissed on 14.9.1999) and also the record of pending present Special appeal no. 1369 of 1999, simply to ascertain the matter in consonance with the requirement as to whether the recall application filed on behalf of the committee of management may be allowed or the same may be dismissed in absence of any rejoinder affidavit to the allegations made in the counter affidavit filed by the petitioner. That the special appeal no. 840 of 1999 was dismissed as not pressed on 23.11.2003 by the Division Bench presided over by the Hon’ble Dr. B.S. Chauhan and Hon’ble Dilip Gupta, JJ. The aforesaid appeal was filed by the Committee of Management of Ambika Prasad Intermediate College, Moradabad challenging the judgement and order dated 11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai J in writ petition no. 24443 of 1989 (Prem Shankar Sharma Vs. State of U.P. and others). Thereafter an application for recall of the order dated 23.11.2003 purported to have been passed in the Special Appeal no. 840 of 1999 without annexing the judgement dated 23.11.2004 dismissing the aforesaid Special Appeal no. 840 of 1999 was filed without serving the copy of said application to the counsel for the Petitioner. That the Petitioner filed the counter affidavit in reply to the affidavit filed in support of the recall application. It was stated that the judgment can not be recalled by moving an application at belated stage and the copy of the same is not given to the counsel appearing on behalf of answering respondent. That it was further stated that the said application is filed without having any explanation regarding non-filing of application seeking condonation of delay. Thus the same is not maintainable and liable to be rejected. That it was further stated that the Special Appeal no. 860 of 1999 filed by Sudhir Kumar against the same judgement dated 11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai, J has been dismissed on 2.4.2004. This person Sudhir Kumar was inducted as the Lecturer in English after dispensing the services of the petitioner. However, when the writ petition no. 24443 of 1989 was allowed on 11.8.1999, then the services of Sudhir Kumar were terminated and as such he filed the Special appeal no. 860 of 1999, which was also dismissed and thereby reaffirming the judgement dated 11.8.1999. That the special appeal no. 907 of 1999 was filed against the same judgement passed on 11.8.1999 by Hon’ble Mr. Justice V.M. Sahai in writ petition no. 24443 of 1989, but that special appeal was also dismissed as misconceived and also being filed without any locus-standi by the judgment dated 14.9.1999.
That on 26.10.2006 the jurisdiction to here the listed special appeals for the year of 1999 for hearing including the bunch cases was conferred by the authority of Hon’ble Chief Justice to the division bench presided over by their lordships Hon’ble Mr. Justice R.K. Agrawal and Hon’ble Mr. Justice Vikram Nath in Court no.2. It is submitted that the present Special appeal no. 1369 of 1999 was not even listed in court no. 34, but since the record of the said special appeal no. 1369 of 1999 was summoned in furtherance of recall application filed in special appeal no 840 of 1999 by the bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta and as such only to ascertain the facts stated in the counter affidavit and in the affidavit filed in support of the alleged recall application, the records of three aforesaid special appeal was summoned, wherein the name of the counsel appearing on behalf of petitioner/respondent namely Sri Ashok Khare, Advocate was the only name mentioned in special appeal no. 1369 of 1999. That the Standing counsel was not prepared to argue the matter pertaining to the special appeal no. 1369 of 1999 filed by the State of U.P. in absence of the same not being listed in court no. 34 and in absence of Sri Ashok Khare, senior Counsel appearing in the said appeal on behalf of petitioner. This fact has been brought to the notice of the deponent by his counsel appearing in Special appeal no. 840 of 1999, which was dismissed on 23.11.2004.That the division bench presided over by Hon’ble Justice Dr. B.S. Chauhan enquired about the matter from Sri V.K. Singh Advocate appearing in special appeal no. 840 of 1999 and also enquired from the counsel for the respondent only about the controversy involved in all such special appeal out of which three special appeals were already dismissed while the special appeal no. 1369 of 1999 filed by State of U.P. was surviving. The counsel informed that the question as to whether a teacher while detained under Preventive detention could have been said to be voluntarily absenting from duty on the basis of which without affording any opportunity, the services of such teacher may be dispensed with in gross violation of the principle of natural justice and the case law relied upon in the judgement dated 11.8.1999 (state of Madhya Pradesh Vs. Rama Shankar Raghuvanshui A.I.R. 1983 S.C. 374), (M.H. Devendrappa Vs. Karnataka State in Small Industries Development Corporation. A.I.R. 1988 S.C. 1064), Sarnam Singh Vs. Smt Pushpa Devi 1986 (1) U.P.L.B.E.C. page 348 and Anukool Chandra Pradhan Vs. Union of India A.I.R. 1997 S.C. 2814, State of Orissa Vs. Dr. Miss. Bina Pani Dei and others 1967 (2) S.C.R. 625 (Para-9), Mohinder Singh Gill VS. Chief Election Commissioner 1978 (2) S.C.R. 272 (Para-9), State of West Bengal Vs. Anwar Ali Sarkar 1952 S.C.R. 284 followed in D.K. Yadav Vs. M/S J.M.A. Industry J.T. 1993 (3) S.C. 617 as well as the provisions of Regulation 35, 36, 37, 38, 39, 40, 44 and 45 read with section 16 (G) (3-A) as provided under Chapter III of the U.P. Intermediate Education Act, 1921 and rule 6 of rules framed under Act no. 5 of 1982 referred in the judgement dated 11.8.1999 were indicated as the controversy involved regarding unavoidable incident relating to the arrest under preventive detention, which is not pertaining to any criminal activity, but simply on account of participating into association under Article 19 (1) ( C) of the Constitution of India. The matter was not argued by the standing counsel, but in the judgment allegedly delivered on 26.10.2006, it has been falsely mentioned that the case was argued by the learned standing counsel appearing for the State Appellant. The counsel for the petitioner in Special Appeal No. 840/1999 Sri Yogesh Kumar saxena, Advocate informed the deponent that it was only Sri V.K. Singh, Advocate appearing in Special appeal No. 840/1999, who placed the controversy involved in his special appeal no. 840 of 1999.That on 1.11.2006, when the matter was shown to be listed in the cause list of court no. 34 regarding the delivery of the order in the recall application filed in special appeal no. 840 of 1999 then counsel for the petitioner was informed that since the special appeal no. 1369 of 1999 filed by the State of U.P. was also liable to be dismissed and as such it has been shown to be decided on 26.10.2006 in the cause list of 1.11.2006. That upto this time i.e. 1.11.2006 there was no existence of the order alleged to have been passed on 26.10.2006 in the special appeal no. 1369 of 1999 on the basis of which the recall application was decided as no order is required to be passed on this application, but subsequently thereafter when the message of dismissal of special appeal no. 1369 of 1999 was communicated to the petitioner, then counsel for the petitioner came to know about the existence of the order. He applied for the order in anticipation that the special appeal bearing special appeal no. 1369 of 1999, which was earlier filed as (defective) appeal no. 630 of 1999 might have been dismissed as there may not be the inconsistent order in the said appeal after dismissal of three special appeals filed against the same judgement, in which the committee of Management and Secretary U.P. Secondary Commission remained at the array of respondents and were duly represented by their respective counsels. That, although the order passed on 23.11.2004 dismissing the Special Appeal No. 840 of 1999 has been affirmed by the order dated 26. 10. 2006 passed on Recall application, as it has been noted that in view of the judgement passed in special appeal No. 1369 of 1999, no order is required to pass on the recall application. Thus it appears that even by this order passed on 26.10.2006, the Hon’ble Division Bench dealing with the recall application in special Appeal No. 840 of 1999 did not find any merit in the said appeal. The Hon’ble division bench Presided by Hon’ble Dr. justice B. S. Chauhan adopted a unique manner in deciding the present Special Appeal wholly without jurisdiction purported to have decided on the same day, to which no person could have decided in the open court on 26.10.2006, otherwise their was no occasion for listing of the case on 1.11.2006 in the cause list for appropriate order on the recall application filed in Special Appeal no. 840 of 1999. Thus the judgement passed in special Appeal is bad in the light of the legal fiction that what not be done directly in absence of jurisdiction, the can not be done indirectly by the Hon’ble Division Bench presided over by Hon’ble Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta in passing the judgement on 26.10.2006 passed in special Appeal No. 1369 of 1999.
That in this manner since the judgement passed in the special appeal no. 1369 of 1999 by the bench presided over the Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta is the judgment passed in absentia of the counsel of the petitioner/respondent appearing in the said appeal namely Senior Counsel Sri Ashok Khare, Advocate for the petitioner in writ petition no. 24443 of 1989, which was the only name printed as the sole name of the opposite party; and the same special appeal no. 1369 of 1999 was neither listed for hearing under the caption of the jurisdiction, nor there had been any serial number mentioned against the said listing of the special appeal, regarding which, the communication could have been made to the senior counsel Sri Ashok Khare, Advocate appearing on behalf of petitioner by the other counsel appearing in special appeal no. 840 of 1999 at the time of its dismissal on 23.11.2004. There was no jurisdiction conferred with the division bench presided over by Hon’ble Mr. Justice Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta to decide the special appeal of the year of 1999 as the jurisdiction of the same was conferred before court no. 2 under the prerogative and the authority of the Hon’ble chief justice in consonance with the requirement of Chapter
V Rule 1 of Allahabad High Court Rules. The judgement dated 26.10.2006 passed in Special Appeal 1369 of 1999 is contradiction to the order passed in special appeal No. 860 of 1999(Dismissed on 2.4.2004), special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004). All the Appellants filed their appeals against the same judgement, and the appellants of special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004)were also impleaded as respondents in present special appeal no. 1369 of 1999 and thus the judgement passed ex-parte in special appeal no. 1369 of 1999 on 26.10.2006 is passed against the principle of natural justice causing prejudice and barred by constructive Res- judicata as held in Sarguja Transport Service versus State Transport appellate Tribunal (1987)1 S. C. C. 5.( paragraph 7)

That it is submitted that there is the complete procedure prescribed for having the jurisdiction being conferred by Hon’ble the Chief Justice for deciding the special appeal and without any nomination being conferred to the particular Hon’ble Division Bench by the specific order of Hon’ble Chief Justice, the matter may not be decided by another coordinated Hon’ble Division Bench, except the Hon’ble Division Bench having the jurisdiction conferred to the different benches as per the circulation of cause list circulated to the Hon’ble benches and members of the Bar.
That the constitution of the benches as per the jurisdiction conferred and allotted to them by the order of Hon’ble Chief Justice or in accordance with his lordship’s direction under Rule 1 of Chapter V of Allahabad High Court Rules, 1952. The Registrar shall subject to such direction as Hon’ble Chief Justice may give from time to time caused to be prepare a cause list for each day on which the court sits containing the list of cases, which may be heard by different benches of court under Rule 6 of Chapter VI of High Court Rules, 1952.
That an application for expediting of hearing of case or for listing a case out of term or for removal of case to be tried and determined by the court under Rule 4 or for withdrawal of a case under Article 228 of the Constitution of India shall be laid before Hon’ble Chief Justice (or any other judge of a bench nominated by Chief Justice in respect of any case or class of cases) for orders. Thus for having an out of term hearing of a case, the application is required to be moved before the Hon’ble the Chief Justice.
That in this manner, it is crystal clear that if the case is not listed in the cause list after determination of heading for what purposes aforesaid matter is being listed, the other coordinate Division Bench dealing with other jurisdiction shall not be empowered to decide such case except by getting the nomination of the matter by the order of Hon’ble Chief Justice.
That the other aspect of the matter is pertaining to the determination of the reason for which a particular case is being listed in the cause list circulated to the bench and the members of Bar, the case may not be decided by any other coordinated Division Bench without it being posted for hearing.
That the Allahabad High Court Rules, 1952 have been promulgated in exercise of the power conferred under Article 225 of the Constitution of India and all other powers enabling it on that behalf. Thus the strict observation and compliance of mandatory provisions is required to be observed by the Hon’ble Court in consonance with requirement of Principle of equity, fairness and in such circumstances if the practice and procedure prescribed in this regard is not followed then the deviations from the rules of court may violate Article 14 of the Constitution of India.
That in the light of the aforesaid legal propositions advanced by the deponent / writ petitioner, it is submitted that the present special appeal without being listed in the daily cause list either under the separate serial number in the cause list, nor it remain listed with the appropriate heading ‘For Hearing’, but the same has been decided without giving notice to the counsel appearing for respondent.
That under the provisions of Chapter V Rule 1 of High Court Rules, 1952, the sole prerogative of the Hon’ble Chief Justice to decide the particular subject matter conferred on particular bench for particular period. If the decision of the subject matter by some other bench is taken up without being listed at the serial number under the heading of the hearing or without the case being Part-heard or tide-up, if the decision is given by the other bench without nominating by the Hon’ble Chief Justice the judgement will be without jurisdiction and nullity.
That, it is in the interest of justice that the order dated 26.10.2006 passed in Special Appeal no. 1369 of 1999 may be set aside and the Hon’ble Chief Justice refer the matter to Hon’ble Three Judges, as justice may be done with the rights of the applicant/petitioner.
Prem Shankar Sharma, aged about 64 years, son of Sri Ram Bhajan Lal Sharma, , Lecture in English (Retired) in Ambika Prasad Intermediate College, Near Police station, Moradabad resident of Mohalla- Shuklan (Near Chaurasi Ghante of Mandir) Moradabad, District Moradabad

yogesh saxena said...

Complaint in respect of functioning of Justice Dr. B.S. Chauhan in respect of his functioning as Allahabad High Court Judge, Now elevated as Chief Justice of another High Court
To,
My lord The Chief Justice Of India,
Hon’ble Supreme Court Of India,
New Delhi
Reference:- The Division Bench presided over by Hon’ble Mr. Justice Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta has decided the special appeal No. 1369 of 1999 wholly without Jurisdiction , as the jurisdiction to hear and decide the same on 26.10.2006, the listed special appeals for the year of 1999 for hearing including the bunch cases was conferred by the authority of Hon’ble Chief Justice to the division bench presided over by their lordships Hon’ble Mr. Justice R.K. Agrawal and Hon’ble Mr. Justice Vikram Nath in Court no.2 Gupta under the prerogative and the authority of the Hon’ble chief justice in consonance with the requirement of Chapter V Rule 1 of Allahabad High Court Rules. It is submitted that the Special appeal no. 1369 of 1999 was not even listed in court no. 34, but since the record of the said special appeal no. 1369 of 1999 was summoned in furtherance of recall application filed in dismissed special appeal no 840 of 1999 by the bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta. There is a complete procedure prescribed for having the jurisdiction being conferred by Hon’ble the Chief Justice for deciding the special appeal and without any nomination being conferred to the particular Hon’ble Division Bench by the specific order of Hon’ble Chief Justice, the jurisdiction conferred and allotted to them by the order of Hon’ble Chief Justice or in accordance with his lordship’s direction under Rule 1 of Chapter V of Allahabad High Court Rules, 1952 The judgement dated 26.10.2006 passed in Special Appeal 1369 of 1999 is contradiction to the order passed in special appeal No. 860 of 1999(Dismissed on 2.4.2004), special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004). All the Appellants filed their appeals against the same judgement, and the appellants of special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004)were also impleaded as respondents in present special appeal no. 1369 of 1999 and thus the judgement passed ex-parte in special appeal no. 1369 of 1999 on 26.10.2006 is passed against the principle of natural justice causing prejudice and barred by constructive Res- judicata
Subject:- Direction may be issued for deciding the matter pertaining to recall of order and judgement dated 26.10.2006 passed in Special Appeal 1369 of 1999 passed wholly without Jurisdiction by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta as the record of the said special appeal no. 1369 of 1999 was summoned in furtherance of recall application filed in dismissed special appeal no 840 of 1999 by the bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta, when the Special appeal no. 1369 of 1999 was not even listed in court no. 34 as the listed special appeals for the year of 1999 for hearing including the bunch cases was conferred by the authority of Hon’ble Chief Justice to the division bench presided over by their lordships Hon’ble Mr. Justice R.K. Agrawal and Hon’ble Mr. Justice Vikram Nath in Court no.2
The submission of the petitioner Prem Shankar Sharma, aged about 64 years, son of Sri Ram Bhajan Lal Sharma, , Lecture in English (Retired) in Ambika Prasad Intermediate College, Near Police station, Moradabad resident of Mohalla- Shuklan (Near Chaurasi Ghante of Mandir) Moradabad, District Moradabad in this regards are as under.
That the Petitioner was appointed as Lecturer in English in the institution on 9.8.1968. He was confirmed after completion of probation period on 9.8.1969. He was the member of Rashtriya Swamsevak Sangh and as such he was detained under the maintenance of Internal Security Act from 14.8.1975 to 30.3.1977. He was again detained under National Security Act (N.S.A.) on 1.11.1980 upto 10.12.1980 and despite the aforesaid preventive detention; the respondents paid the petitioner salary. That third time when on 11.7.1987 the petitioner went to Govt. Inter College, Moradabad to take training under the new education policy, he was detained under the provisions of Internal Security Act. That the petitioner was taking the training alongwith the principal of institution and one Khajan Giri and as such he told the Principal to inform the Manager about his arrest, but still the Manager wrote a letter on 24.7.1987 stating therein that the petitioner did not attend the college and was not present in the institution on 21.7.1987.That on 27.7.1987 the petitioner wrote a letter that he was arrested by the Police at the gate of Govt. Inter College, and had been lodged in district Jail Moradabad from 11.7.1987. This letter was sent through district Jail Moradabad and the same was communicated to the Manager, who sent the aforesaid letter to the D.I.O.S. Moradabad on 31.7.1987.That the members of Bhartiya Janta Party shown its resentment against the illegal detention of the petitioner and the news to this effect was published in Amar Ujala on 16.7.1987. Thus the management knew the fact regarding the absence of petitioner on account of unavoidable circumstances of his illegal detention, but still the allegation of absent from leave was leveled against the petitioner.That Sri Kameshwar Nath Mishra, Senior Lawyer of District Court Moradabad and the Vice-President of Committee of Management of Institution passed resolution on 15.7.1987 seeking bye cot of all the courts Moradabad on account of illegal arrest of petitioner. That still the resolution was passed on 4.9.1987 to give a notice to the petitioner as to why he remained absent from 11.7.1987 and sought for his explanation. The notice was sent to the petitioner in jail on 10.9.1987 stating therein that why his services should not be terminated. The explanation of petitioner regarding his absence being beyond his control as had been detained under the National Security Act and the earlier information sent to the manager on 27.7.1987 was not taken into consideration by the management. That the charges were in respect of previous detention for which the petitioner was paid his salary was also leveled as the first charge, while the second charge was falsely concocted, as the petitioner did not give any information regarding his detention, nor gave any leave application. The petitioner explained every thing in his letter dated 21.1.1988 and said that he is district Jail due to illegal detention and as such the absence of petitioner was beyond his control. The sole reason for the detention of the petitioner was that he was the District Secretary of Bhartiya Janta Party. That the petitioner was suspended, but the suspension order was revoked after 60 days. It is submitted that after being released from the preventive detention on 11.7.1988, the petitioner was directed to put his signature in the office of D.I.O.S. Moradabad, as the Management did not allow the petitioner to resume his duties. The petitioner was paid salary by the D.I.O.S. even after the preventive detention. That despite all such facts the matter was referred to the U.P. Secondary Education service Commission, Allahabad to whom petitioner sent a letter on 24.2.1989 seeking setting aside the proposal of the Committee of Management, but the one member committee who was not even authorized to conduct the enquiry recommended for termination of services of the petitioner and thereafter the U.P. Secondary Education service Commission, Allahabad on 28.7.1989 granted approval to the proposal for termination.That one member committee of O.N. Shah who remained Assistant Manager of the Committee of Management of the Institution on 17.5.1987 and was the Principal of S.S.K. Inter College could not be appointed as one member committee and his recommendation to dispense with the services to the commission were void-ab- initio and as such the subsequent order of termination dated 1.9.1989 on the baseless, misconceived and frivolous charges was liable to be set aside, which was done by the reasoned judgement passed on 11.8.1999 in writ petition no. 24443 of 1989.
The said judgement was challenged by the Committee of Management in Special Appeal no. 840 of 1999.That after the dismissal of special appeal no. 840 of 1999 when the recall application was filed without serving the copy of said application to the counsel for the petitioner, then the division bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta after going through the contents of the counter affidavit filed in the said application seeking recall of the order dated 23.11.2003, summoned the file of the special appeal no. 860 of 1999 (filed by Sudhir Kumar dismissed on 2.4.2004), the Special Appeal no. 907 of 1999 (filed by U.P. Secondary Education Service Commission dismissed on 14.9.1999) and also the record of pending present Special appeal no. 1369 of 1999, simply to ascertain the matter in consonance with the requirement as to whether the recall application filed on behalf of the committee of management may be allowed or the same may be dismissed in absence of any rejoinder affidavit to the allegations made in the counter affidavit filed by the petitioner. That the special appeal no. 840 of 1999 was dismissed as not pressed on 23.11.2003 by the Division Bench presided over by the Hon’ble Dr. B.S. Chauhan and Hon’ble Dilip Gupta, JJ. The aforesaid appeal was filed by the Committee of Management of Ambika Prasad Intermediate College, Moradabad challenging the judgement and order dated 11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai J in writ petition no. 24443 of 1989 (Prem Shankar Sharma Vs. State of U.P. and others). Thereafter an application for recall of the order dated 23.11.2003 purported to have been passed in the Special Appeal no. 840 of 1999 without annexing the judgement dated 23.11.2004 dismissing the aforesaid Special Appeal no. 840 of 1999 was filed without serving the copy of said application to the counsel for the Petitioner. That the Petitioner filed the counter affidavit in reply to the affidavit filed in support of the recall application. It was stated that the judgment can not be recalled by moving an application at belated stage and the copy of the same is not given to the counsel appearing on behalf of answering respondent. That it was further stated that the said application is filed without having any explanation regarding non-filing of application seeking condonation of delay. Thus the same is not maintainable and liable to be rejected. That it was further stated that the Special Appeal no. 860 of 1999 filed by Sudhir Kumar against the same judgement dated 11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai, J has been dismissed on 2.4.2004. This person Sudhir Kumar was inducted as the Lecturer in English after dispensing the services of the petitioner. However, when the writ petition no. 24443 of 1989 was allowed on 11.8.1999, then the services of Sudhir Kumar were terminated and as such he filed the Special appeal no. 860 of 1999, which was also dismissed and thereby reaffirming the judgement dated 11.8.1999. That the special appeal no. 907 of 1999 was filed against the same judgement passed on 11.8.1999 by Hon’ble Mr. Justice V.M. Sahai in writ petition no. 24443 of 1989, but that special appeal was also dismissed as misconceived and also being filed without any locus-standi by the judgment dated 14.9.1999.
That on 26.10.2006 the jurisdiction to here the listed special appeals for the year of 1999 for hearing including the bunch cases was conferred by the authority of Hon’ble Chief Justice to the division bench presided over by their lordships Hon’ble Mr. Justice R.K. Agrawal and Hon’ble Mr. Justice Vikram Nath in Court no.2. It is submitted that the present Special appeal no. 1369 of 1999 was not even listed in court no. 34, but since the record of the said special appeal no. 1369 of 1999 was summoned in furtherance of recall application filed in special appeal no 840 of 1999 by the bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta and as such only to ascertain the facts stated in the counter affidavit and in the affidavit filed in support of the alleged recall application, the records of three aforesaid special appeal was summoned, wherein the name of the counsel appearing on behalf of petitioner/respondent namely Sri Ashok Khare, Advocate was the only name mentioned in special appeal no. 1369 of 1999. That the Standing counsel was not prepared to argue the matter pertaining to the special appeal no. 1369 of 1999 filed by the State of U.P. in absence of the same not being listed in court no. 34 and in absence of Sri Ashok Khare, senior Counsel appearing in the said appeal on behalf of petitioner. This fact has been brought to the notice of the deponent by his counsel appearing in Special appeal no. 840 of 1999, which was dismissed on 23.11.2004.That the division bench presided over by Hon’ble Justice Dr. B.S. Chauhan enquired about the matter from Sri V.K. Singh Advocate appearing in special appeal no. 840 of 1999 and also enquired from the counsel for the respondent only about the controversy involved in all such special appeal out of which three special appeals were already dismissed while the special appeal no. 1369 of 1999 filed by State of U.P. was surviving. The counsel informed that the question as to whether a teacher while detained under Preventive detention could have been said to be voluntarily absenting from duty on the basis of which without affording any opportunity, the services of such teacher may be dispensed with in gross violation of the principle of natural justice and the case law relied upon in the judgement dated 11.8.1999 (state of Madhya Pradesh Vs. Rama Shankar Raghuvanshui A.I.R. 1983 S.C. 374), (M.H. Devendrappa Vs. Karnataka State in Small Industries Development Corporation. A.I.R. 1988 S.C. 1064), Sarnam Singh Vs. Smt Pushpa Devi 1986 (1) U.P.L.B.E.C. page 348 and Anukool Chandra Pradhan Vs. Union of India A.I.R. 1997 S.C. 2814, State of Orissa Vs. Dr. Miss. Bina Pani Dei and others 1967 (2) S.C.R. 625 (Para-9), Mohinder Singh Gill VS. Chief Election Commissioner 1978 (2) S.C.R. 272 (Para-9), State of West Bengal Vs. Anwar Ali Sarkar 1952 S.C.R. 284 followed in D.K. Yadav Vs. M/S J.M.A. Industry J.T. 1993 (3) S.C. 617 as well as the provisions of Regulation 35, 36, 37, 38, 39, 40, 44 and 45 read with section 16 (G) (3-A) as provided under Chapter III of the U.P. Intermediate Education Act, 1921 and rule 6 of rules framed under Act no. 5 of 1982 referred in the judgement dated 11.8.1999 were indicated as the controversy involved regarding unavoidable incident relating to the arrest under preventive detention, which is not pertaining to any criminal activity, but simply on account of participating into association under Article 19 (1) ( C) of the Constitution of India. The matter was not argued by the standing counsel, but in the judgment allegedly delivered on 26.10.2006, it has been falsely mentioned that the case was argued by the learned standing counsel appearing for the State Appellant. The counsel for the petitioner in Special Appeal No. 840/1999 Sri Yogesh Kumar saxena, Advocate informed the deponent that it was only Sri V.K. Singh, Advocate appearing in Special appeal No. 840/1999, who placed the controversy involved in his special appeal no. 840 of 1999.That on 1.11.2006, when the matter was shown to be listed in the cause list of court no. 34 regarding the delivery of the order in the recall application filed in special appeal no. 840 of 1999 then counsel for the petitioner was informed that since the special appeal no. 1369 of 1999 filed by the State of U.P. was also liable to be dismissed and as such it has been shown to be decided on 26.10.2006 in the cause list of 1.11.2006. That upto this time i.e. 1.11.2006 there was no existence of the order alleged to have been passed on 26.10.2006 in the special appeal no. 1369 of 1999 on the basis of which the recall application was decided as no order is required to be passed on this application, but subsequently thereafter when the message of dismissal of special appeal no. 1369 of 1999 was communicated to the petitioner, then counsel for the petitioner came to know about the existence of the order. He applied for the order in anticipation that the special appeal bearing special appeal no. 1369 of 1999, which was earlier filed as (defective) appeal no. 630 of 1999 might have been dismissed as there may not be the inconsistent order in the said appeal after dismissal of three special appeals filed against the same judgement, in which the committee of Management and Secretary U.P. Secondary Commission remained at the array of respondents and were duly represented by their respective counsels. That, although the order passed on 23.11.2004 dismissing the Special Appeal No. 840 of 1999 has been affirmed by the order dated 26. 10. 2006 passed on Recall application, as it has been noted that in view of the judgement passed in special appeal No. 1369 of 1999, no order is required to pass on the recall application. Thus it appears that even by this order passed on 26.10.2006, the Hon’ble Division Bench dealing with the recall application in special Appeal No. 840 of 1999 did not find any merit in the said appeal. The Hon’ble division bench Presided by Hon’ble Dr. justice B. S. Chauhan adopted a unique manner in deciding the present Special Appeal wholly without jurisdiction purported to have decided on the same day, to which no person could have decided in the open court on 26.10.2006, otherwise their was no occasion for listing of the case on 1.11.2006 in the cause list for appropriate order on the recall application filed in Special Appeal no. 840 of 1999. Thus the judgement passed in special Appeal is bad in the light of the legal fiction that what not be done directly in absence of jurisdiction, the can not be done indirectly by the Hon’ble Division Bench presided over by Hon’ble Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta in passing the judgement on 26.10.2006 passed in special Appeal No. 1369 of 1999.
That in this manner since the judgement passed in the special appeal no. 1369 of 1999 by the bench presided over the Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta is the judgment passed in absentia of the counsel of the petitioner/respondent appearing in the said appeal namely Senior Counsel Sri Ashok Khare, Advocate for the petitioner in writ petition no. 24443 of 1989, which was the only name printed as the sole name of the opposite party; and the same special appeal no. 1369 of 1999 was neither listed for hearing under the caption of the jurisdiction, nor there had been any serial number mentioned against the said listing of the special appeal, regarding which, the communication could have been made to the senior counsel Sri Ashok Khare, Advocate appearing on behalf of petitioner by the other counsel appearing in special appeal no. 840 of 1999 at the time of its dismissal on 23.11.2004. There was no jurisdiction conferred with the division bench presided over by Hon’ble Mr. Justice Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta to decide the special appeal of the year of 1999 as the jurisdiction of the same was conferred before court no. 2 under the prerogative and the authority of the Hon’ble chief justice in consonance with the requirement of Chapter
V Rule 1 of Allahabad High Court Rules. The judgement dated 26.10.2006 passed in Special Appeal 1369 of 1999 is contradiction to the order passed in special appeal No. 860 of 1999(Dismissed on 2.4.2004), special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004). All the Appellants filed their appeals against the same judgement, and the appellants of special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004)were also impleaded as respondents in present special appeal no. 1369 of 1999 and thus the judgement passed ex-parte in special appeal no. 1369 of 1999 on 26.10.2006 is passed against the principle of natural justice causing prejudice and barred by constructive Res- judicata as held in Sarguja Transport Service versus State Transport appellate Tribunal (1987)1 S. C. C. 5.( paragraph 7)

That it is submitted that there is the complete procedure prescribed for having the jurisdiction being conferred by Hon’ble the Chief Justice for deciding the special appeal and without any nomination being conferred to the particular Hon’ble Division Bench by the specific order of Hon’ble Chief Justice, the matter may not be decided by another coordinated Hon’ble Division Bench, except the Hon’ble Division Bench having the jurisdiction conferred to the different benches as per the circulation of cause list circulated to the Hon’ble benches and members of the Bar.
That the constitution of the benches as per the jurisdiction conferred and allotted to them by the order of Hon’ble Chief Justice or in accordance with his lordship’s direction under Rule 1 of Chapter V of Allahabad High Court Rules, 1952. The Registrar shall subject to such direction as Hon’ble Chief Justice may give from time to time caused to be prepare a cause list for each day on which the court sits containing the list of cases, which may be heard by different benches of court under Rule 6 of Chapter VI of High Court Rules, 1952.
That an application for expediting of hearing of case or for listing a case out of term or for removal of case to be tried and determined by the court under Rule 4 or for withdrawal of a case under Article 228 of the Constitution of India shall be laid before Hon’ble Chief Justice (or any other judge of a bench nominated by Chief Justice in respect of any case or class of cases) for orders. Thus for having an out of term hearing of a case, the application is required to be moved before the Hon’ble the Chief Justice.
That in this manner, it is crystal clear that if the case is not listed in the cause list after determination of heading for what purposes aforesaid matter is being listed, the other coordinate Division Bench dealing with other jurisdiction shall not be empowered to decide such case except by getting the nomination of the matter by the order of Hon’ble Chief Justice.
That the other aspect of the matter is pertaining to the determination of the reason for which a particular case is being listed in the cause list circulated to the bench and the members of Bar, the case may not be decided by any other coordinated Division Bench without it being posted for hearing.
That the Allahabad High Court Rules, 1952 have been promulgated in exercise of the power conferred under Article 225 of the Constitution of India and all other powers enabling it on that behalf. Thus the strict observation and compliance of mandatory provisions is required to be observed by the Hon’ble Court in consonance with requirement of Principle of equity, fairness and in such circumstances if the practice and procedure prescribed in this regard is not followed then the deviations from the rules of court may violate Article 14 of the Constitution of India.
That in the light of the aforesaid legal propositions advanced by the deponent / writ petitioner, it is submitted that the present special appeal without being listed in the daily cause list either under the separate serial number in the cause list, nor it remain listed with the appropriate heading ‘For Hearing’, but the same has been decided without giving notice to the counsel appearing for respondent.
That under the provisions of Chapter V Rule 1 of High Court Rules, 1952, the sole prerogative of the Hon’ble Chief Justice to decide the particular subject matter conferred on particular bench for particular period. If the decision of the subject matter by some other bench is taken up without being listed at the serial number under the heading of the hearing or without the case being Part-heard or tide-up, if the decision is given by the other bench without nominating by the Hon’ble Chief Justice the judgement will be without jurisdiction and nullity.
That, it is in the interest of justice that the order dated 26.10.2006 passed in Special Appeal no. 1369 of 1999 may be set aside and the Hon’ble Chief Justice refer the matter to Hon’ble Three Judges, as justice may be done with the rights of the applicant/petitioner.
Prem Shankar Sharma, aged about 64 years, son of Sri Ram Bhajan Lal Sharma, , Lecture in English (Retired) in Ambika Prasad Intermediate College, Near Police station, Moradabad resident of Mohalla- Shuklan (Near Chaurasi Ghante of Mandir) Moradabad, District Moradabad