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
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