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AJAY KUMAR SINHA versus HIGHCOURT OF JUDICATURE AT ALLD THRU REGISTRAR GENERAL & OTH

High Court of Judicature at Allahabad

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Ajay Kumar Sinha v. Highcourt Of Judicature At Alld Thru Registrar General & Oth - WRIT - A No. 48457 of 2004 [2004] RD-AH 1417 (17 November 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

   A.F.R.

COURT NO.34

CIVIL MISC. WRIT PETITION NO.48457 OF 2004

Ajay Kumar Sinha                        .......... Petitioner

Versus

High Court of Judicature at

Allahabad & Ors.                           .........   Respondents

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

(By Hon'ble Dr. B.S. Chauhan, J.)

This writ petition has been filed for quashing the communications dated 26.5.2003 and 19.3.2004 by the Joint Registrar of the High Court, Allahabad. By the first communication, it has been informed to the petitioner that his representation against the adverse entry of censure has been rejected by the Administrative Committee of the Court, while by the second communication, he has been informed that the second representation/memorial against the adverse entry has been rejected as not maintainable.

The facts and circumstances giving rise to this case are that the petitioner, an officer of the U.P. Higher Judicial Service, has been given the  censure entry for the Year 1999-2000 for not furnishing correct information in the self-assessment form for the purpose of recording A.C.Rs. and for retaining the files in bail matters after granting bail to the accused persons, for about a month, and because of not sending the files to the office, persons who had been granted bail had to remain in jail for a month unnecessarily as for want of bail orders, they could not execute bail bonds for their release from custody. Against the said adverse entry, petitioner made a representation on 9.4.2001. However, vide letter dated 26.5.2003, he was informed that the said representation stood rejected. A memorial dated 6.9.2003 was sent by the petitioner to the Court, and vide Communication dated 19.3.2004 he has been informed that his memorial has been rejected as not maintainable.

It has been submitted by the learned counsel for the petitioner that adverse entry had been made by the Administrative Judge, and the same Hon'ble Judge sat in the meeting of the Administrative Committee and participated when the matter was taken up, and gave his opinion for rejecting the representation of the petitioner. This was in contravention of the principles of natural justice. More so, there could be no justification for giving the adverse entry of censure for retaining the files for a month, as it was the duty of the Sessions Clerk to collect the files the same had been retained on the oral instructions of the District Judge as he wanted the lawyer's to call off the strike during the relevant period. Adverse entry had been given without affording an opportunity to the petitioner. Thus, both the communications are liable to be quashed.

On the contrary, Shri K.R. Sirohi, learned  counsel appearing for the Allahabad High Court has submitted that as the files relating to bails had been retained by the petitioner in his Box, the same could not be taken by the Sessions Clerk. The accused persons who had been granted bail had therefore to remain in jail for about a month, and this happened in eight cases. He further submitted that as the petitioner had passed the bail orders as the In-charge District Judge, the question of oral instructions by the District Judge could not arise. The District Judge as a Reporting Officer, did not mention about the bail orders and the Administrative Judge noticed the same during the annual inspection of the Court. The matter had been referred to the Committee of two Hon'ble Judges and the Committee submitted its report that the representation of the petitioner was not worth acceptance. The Administrative Committee considered the case on 10th May, 2003 and rejected the representation considering the fact that in eight cases, the accused remained in jail for about a month because the files had not been sent to the office. The second memorial was rejected by the Hon'ble Chief Justice on 12.3.2004 as the memorial/second representation/review was not maintainable in view of the Full Court Resolution dated 6.1.1990. Thus, no fault can be found with the impugned order. More so, it has been pointed out by Shri Sirohi that the minutes of the Administrative Committee dated 10th May, 2003 revealed that Hon'ble Administrative Judge remained absent when the matter relating to petitioner's representation was being considered in the meeting by the Administrative Committee. This apart, in view of the C.L. No. 53/IV-h-14/84 dated 29th August, 1984 read with C.L. No. C-10/IV h- 14/92 dated 27th January, 1992, it was the duty of the petitioner being the Presiding Officer, to have correctly filled up the statement of out-turn. In the instant case, the A.C.Rs. were not confined only for retaining the files, but the out-turn of the petitioner was very low; and he had given wrong figures. He, therefore, submitted that there was no force in the petition, and it was liable to be dismissed.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.

The adverse entry communicated to the petitioner reads as under:-

"The out turn of the officer is 92.5 % which is short. The District Judge has reported that from the date of joining of the officer at Saharanpur there were 40 Fridays (i.e. Misc. days) but the officer has claimed 49 days as Misc. Days meaning thereby the officer has wrongly claimed 9 more Misc. days on the face of the record. Besides looking to the pendency of the cases in his court he is entitled to only nine misc. days. Thus the officer has wrongly claimed 40 misc. days. He did not comply with C.L. No. 205/IV-h-14/Admn. ''A' dated 23rd December, 1976 as he being the senior most Additional District Judge of the district did not devote 3/4th time to civil work as provided in the above circular letter.  According to C.L. No. 62/IV-h- 14 dated 31st May, 1979 such officer will be subject to comment in the annual entry.

During annual regular inspection of the High Court it was found that in the following eight cases of bail applications the officer while working as Incharge District Judge granted bail to the accused persons on 7th March, 2000. The bail orders were signed by the officer on the same day i.e. 7th March, 2000 but thereafter the files were kept by the officer in his box and were not sent to the office due to which copy of bail order could not be issued by the office for about one month and the accused persons who had been granted bail had to remain in jail for about one month. Copies of those bail orders could be issued only when the officer released these files from his possession on 04.04.2000 to which effect there is an order on the order sheet of every files dated 04.04.2000 under the signature of the officer stating that since the lawyers were on strike therefore the bail order was not issued. On being asked to explain about these files the officer orally accepted before me (in presence of my staff) in the chamber of District Judge, Saharanpur that after signature on the bail orders he retained these files with him and did not send the same to the office for about one month but tried to explain that since the lawyers were on strike therefore he kept the files with him. Neither the employees nor the Judicial Offices of the judgeship were on the strike and the courts and offices were open during this period therefore there was no occasion for the officer to keep these files with him for about a month after granting bail. He could not reply to my question that when the employees and the judicial officers of the judgeship were not on strike and the offices were open why did he not send these files to the office and kept the same with him. He intentionally did so because he knew that as soon as he would sent the files of bail orders to the office copy of the same would be issued and after filing the bail bonds the accused persons would be released. Due to this illegal act and misconduct of the officer the accused persons in these cases who had been granted bail could not be released from jail for about a month. This style of working of such a senior officer is liable to be condemned and he is liable to be censured".

Details of files of bails

1.B.A. No. 326 of 2000 Intesar Vs. State u/s 393 IPC P.S. (Crime No. 1/2000), Police Station Gangoh, District Saharanpur.

2.B.A. No. 327 of 2000 Intezar Vs. State u/s 25 Arms Act (Crime No. 15/2000), Police Station Gangoh, District Saharanpur.

3.B.A. No. 373 of 2000 MehtabVs. State u/s 393 IPC P.S. (Crime No. 1/2000), Police Station Gangoh, District Saharanpur.

4.B.A. No. 378 of 2000 GulzarVs. State u/s 147,148,149,307 IPC P.S. (Crime No. 383/1997), Police Station Kotwali Dehat, District Saharanpur.

5.B.A. No. 379 of 2000 GulzarVs. State u/s 147,148,149,302 IPC P.S. (Crime No. 336/1997), Police Station Kotwali Dehat, District Saharanpur.

6.B.A. No. 394 of 2000 Mukesh Vs. State u/s 376,511 IPC (Crime No. 48/2000), Police Station Kotwali Dehat, District Saharanpur.

7.B.A. No. 406 of 2000 Zahiruddin & 4 others Vs. State u/s 147,308,323,336,325,506 IPC P.S. (Crime No. 4-7/2000), Police Station Kotwali Dehat, District Saharanpur.

8.B.A. No. 422 of 2000 Rizwan Vs. State u/s 394,397,302,411,323 IPC P.S. (Crime No. 296/1998), Police Station Kotwali Dehat, District Saharanpur.

Photo copies of bail orders and order sheets in all the above Cases are annexed herewith as annexure 1 to 8.

In the light of the above the work and conduct of the officer is not up to the mark rather condemnable and the officers censured for his illegal works and misconduct i.e (i) wrongly showing his out turn by claiming 48 misc. days while he was entitled to 9 misc. days only, for the work done at Saharanpur, (ii) not devoting 3/4th time to civil cases as required by the Circular letter mentioned above, and (iii) keeping the bail orders with him illegally for about one month thereby illegally detaining the accused persons in 8 cases in jail for about a month."

The aforesaid entry makes it clear that petitioner had furnished wrong out-turn of the disposal of cases in an attempt to inflate the disposal which, in fact, was very low. He had wrongly shown his out-turn by claiming 49 miscellaneous days while he was entitled to nine miscellaneous days only for the work done. He had not worked in pursuance of the Circular Letter of this Court dated 23rd December, 1976 for devoting 3/4th time to civil work. He retained eight files for a month in his Box after granting bail to the accused therein. The conduct of the officer was not up to the mark for wrongly showing his out-turn etc. It is further evident that when the petitioner made a representation/memorial, a Committee of two Hon'ble Judges was constituted and the Committee submitted the report after local enquiry and hearing the petitioner also, and considering the same the representation of the petitioner against the adverse entry was rejected by the Administrative Committee. The  memorial was rejected by the order of the Hon'ble Chief Justice as not maintainable in view of the Full Court's resolution dated 6.1.1990.

Even otherwise, the law is well settled that once a representation against an order is rejected, an employee cannot make another representation seeking the same relief as held by the Constitution Bench of the Hon'ble Apex Court in Ravindra Nath Bose Vs. Union of India, AIR 1970 SC 470. More so, review of an administrative order is not permissible unless the order is shown to have been based on irrelevant grounds, totally unjust or contrary to law, or the order was prejudicial to a party and had been passed without giving opportunity of hearing provided under the Statute/Rules etc.

A Full Bench of Delhi High Court in K.R. Raghavan Vs. Union of India & Ors., (1979) 2 SLR 478 examined the scope of review of an administrative order and held that the same can be reviewed (i) if it is based on irrelevant ground, (ii) it is unjust, and/or (iii) it is contrary to law.

In Gadde Venkateswara Rao Vs. Government of Andhra Pradesh & Ors., AIR 1966 SC 828 the Hon'ble Supreme Court held that review of administrative order is permissible if (i) there is a mistake of fact or law and (ii) if the order is prejudicial to a party and has been passed without giving an opportunity of hearing to the said party.

Thus, in view of the above, we are of the considered opinion that the memorial sent by the petitioner was not maintainable in view of the Full Court's resolution dated 6.1.1990. Even in the absence of such a resolution, the  memorial was not maintainable because review of an order passed on the  administrative side was maintainable only in exceptional circumstances where the authorities failed to consider the material facts. In the instant case, a Committee of two Hon'ble Judges had been constituted to find out the facts and the Committee had submitted its report after hearing the petitioner also, and on the basis of the same the Administrative Committee took a decision that the representation was not worth acceptance. Review of such an order is not warranted. No satisfactory explanation has been furnished, if the petitioner was  aggrieved of the order of the Administrative Committee dated 10.5.2003, why he could not challenge the same within a reasonable time on the judicial side. Even this petition has been filed after expiry of exactly eight months of the letter of communication dated 19.3.2004 without furnishing any satisfactory explanation for the delay and latches on the part of the petitioner. Petitioner did not hesitate in making scandalous allegations against the Hon'ble Inspecting Judge without verifying the facts and applying for the copy of the minutes of the Meeting of the Administrative Committee dated 10th May, 2003, as getting the certified copy of such documents is permissible under Chapter XL Rule 12 of the Allahabad High Court Rules, 1952. When the learned counsel for the petitioner was asked to explain the conduct of the petitioner for making such allegations without verifying the facts, he submitted that it is the duty of the High Court to submit the reply to the averments made in the petition by filing counter affidavit and producing the entire record before the Court, and there was no obligation on the part of the petitioner for verifying the facts before filing this writ petition. We called for the records and found that the District & Sessions Judge, Saharanpur had recorded adverse remarks for the Year 1999-2000 and the same together with self- appraisal were placed before the Hon'ble Administrative Judge for Court's entry, whereupon the Hon'ble A.J. recorded Court's remarks.  It appears that during annual regular inspection of the district courts, it was found that the petitioner while working as In-charge District & Sessions Judge granted bail to the accused persons of eight cases, but kept the files in his Box and did not send the files to the office. A complaint in this regard that was received was sent to the petitioner on 15.3.2000, but still nothing was done by him and it was only on 4.4.2000 for the first time, record of all bail applications were sent by the petitioner which contained the bail orders dated 7.3.2000. As a result of this lapse, copies of the bail order could not be issued and the accused persons who had been granted bail on 7.3.2000 had to remain in jail for about one month. It is further noticed that against the remarks impugned herein, a representation was moved by the petitioner. The representation was considered by the Administrative Committee in its meeting held on 8.5.2001 when it was directed that the comments of the District Judge be asked and Hon'ble Mr. Justice S.N. Agrawal and Hon'ble Mr. Justice J.C. Gupta be requested to enquire into the matter and give their report. The representation so made by the petitioner was carefully considered, local enquiry was held, and thereafter the Committee of Hon'ble Judges submitted its report, clearly indicating that on 7.3.2000 the petitioner had detained nine bail applications and did not hand over the record of the bail applications which continued to remain with him till 4.4.2000. The record of the Administrative Committee meeting will indicate that the said Hon'ble Judge abstained when the representation of the petitioner was considered. Petitioner has not challenged the orders passed by the Administrative Committee and he has challenged only the letters of communication. We fail to understand as to why he could not apply for the copies of the said orders and challenge the same.

The petition has been filed without any sense of responsibility, and such  attitude adopted by the petitioner is held to be reprehensible. The submission made by the learned counsel for the petitioner is not worth acceptance in view of the provisions of Section 103 of the Evidence Act, 1872.

In State of Rajasthan & Ors. Vs. Nandlal & Ors., 1993 (Suppl) 1 SCC 681, the Hon'ble Supreme Court held as under:-

"What we wish to emphasise is that the allegations made by each of the petitioners has to be established by him. If really the petitioners had asked for supply of certain quantity, there must be some evidence in support of such demand, whether in the shape of challan, indent or some other document. Further, when the ware-house could not supply the indented quantity, they must have made an endorsement to that effect on some document or must have issued the  certificate to that effect. All that material must be in possession of the licensee. It is true that the State cannot merely rely upon the the theory of onus of proof and ought to assist the court in arriving at a fair decision by placing all the relevant material before it. But this obligation cannot be read to mean that the State is under an obligation to establish or make out the writ petitioner's case. The burden lies upon the petitioner, who seeks a particular relief on the basis of certain facts, to establish those facts."

It is settled proposition of law that burden of proof always lies upon the party who makes certain allegations and seeks relief on it. The Court has to address itself whether the party, which has made the allegations, has discharged the burden of proving the allegations. Further, the party must succeed on the strength of its own case rather than on the weakness of the case of the other side. Such a party is under a legal obligation to prove its case irrespective of the fact whether the opposite party has proved its case or not. "A mere destruction of the case of the defendant in absence of establishment of his own case, carries the petitioner nowhere." (Vide J.P. Ravidas & Ors. Vs. Navyuvak Harijan Utthapan Multi Unit Industrial Co-operative Society Ltd. & Ors., (1996) 9 SCC 300; H.M.M. Ltd. Vs. Director General, Monopolies and Restrictive Trade Practices Commission, (1998) 6 SCC 485; Kala & Anr. Vs. Madho Parshad Vaidya, (1998) 6 SCC 573; Moran Mar Basselios Catholicos Vs. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526; and Moran Mar Basselios Catholicos Vs. Thukalan Paulo Avira & Ors., AIR 1959 SC 31).

In A. Raghavamma & Anr. Vs. A. Chenchamma & Anr., AIR 1964 SC 136, the Apex Court has explained the distinction between "burden of proof" and "onus to prove" observing as under:-

"There is an essential distinction between burden of proof and onus to prove; burden of proof lies upon the person who has to prove a fact and it never shifts. The burden of proof in the present case, no doubt, lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence..... It is well settled that a person, who seeks to displace the natural succession to property by alleging an adoption, must discharge the burden that lies upon him by proof of factum of adoption and its validity."

In Kalwa Devadattam & Ors. Vs. Union of India & Ors., AIR 1964 SC 880, the Apex Court has observed as under:-

"The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence, at all, is led on the question in dispute by either side; in such a contingency, the party on whom the onus lies to prove a certain fact, must fail. Wherever, however, evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place, truth or otherwise of the case must always be adjudged on the evidence led by the parties." (Emphasis added).

In view of the above, we are of the considered opinion that the petitioner has made allegations against the Hon'ble Inspecting Judge without any sense of responsibility, in a most casual and cavalier manner without considering it appropriate to verify the facts before making such allegations. The petitioner has an experience as a judicial officer for about 30 years. He therefore, should have filed the petition in a proper manner after verifying the facts, particularly when the verification is permissible under the Rules of this Court. The basic orders could have been challenged after taking copies thereof, rather than challenging the communication letters.

It is strange that the petitioner filed the affidavit in support of his writ petition, wherein the allegations against the Hon'ble Inspecting Judge have been sworn on the basis of personal knowledge. We have no hesitation in holding that the petitioner has audacity to file an absolutely false affidavit before this Court, and such a course cannot be countenanced.

We find no force in the contention raised on behalf of  the petitioner that the two Judges' Committee did not give the petitioner an opportunity to cross-examine the then District Judge, Sessions Clerk and other persons examined by them, as it was not a case of departmental proceedings against him nor any charge-sheet had been served upon him. We are also not able to give any credence to the affidavits of large number of Advocates filed by the petitioner in support of his case as all of them assessing him to be a good officer as filling up the A.C.Rs of the officers is the duty of the Court and not of any other person. More so, the said affidavits have been sworn in and attested only on 18th and 19th August, 2004, though the adverse entry relates to for the period 1999-2000.

In view of the above, we do not see any cogent reason to interfere in the matter on any ground and the petition is, accordingly, dismissed.

17.11.2004

SB/AKSI    A.F.R.

COURT NO.34

CIVIL MISC. WRIT PETITION NO.48457 OF 2004

Ajay Kumar Sinha                        .......... Petitioner

Versus

High Court of Judicature at

Allahabad & Ors.                           .........   Respondents

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

(By Hon'ble Dr. B.S. Chauhan, J.)

This writ petition has been filed for quashing the communications dated 26.5.2003 and 19.3.2004 by the Joint Registrar of the High Court, Allahabad. By the first communication, it has been informed to the petitioner that his representation against the adverse entry of censure has been rejected by the Administrative Committee of the Court, while by the second communication, he has been informed that the second representation/memorial against the adverse entry has been rejected as not maintainable.

The facts and circumstances giving rise to this case are that the petitioner, an officer of the U.P. Higher Judicial Service, has been given the  censure entry for the Year 1999-2000 for not furnishing correct information in the self-assessment form for the purpose of recording A.C.Rs. and for retaining the files in bail matters after granting bail to the accused persons, for about a month, and because of not sending the files to the office, persons who had been granted bail had to remain in jail for a month unnecessarily as for want of bail orders, they could not execute bail bonds for their release from custody. Against the said adverse entry, petitioner made a representation on 9.4.2001. However, vide letter dated 26.5.2003, he was informed that the said representation stood rejected. A memorial dated 6.9.2003 was sent by the petitioner to the Court, and vide Communication dated 19.3.2004 he has been informed that his memorial has been rejected as not maintainable.

It has been submitted by the learned counsel for the petitioner that adverse entry had been made by the Administrative Judge, and the same Hon'ble Judge sat in the meeting of the Administrative Committee and participated when the matter was taken up, and gave his opinion for rejecting the representation of the petitioner. This was in contravention of the principles of natural justice. More so, there could be no justification for giving the adverse entry of censure for retaining the files for a month, as it was the duty of the Sessions Clerk to collect the files the same had been retained on the oral instructions of the District Judge as he wanted the lawyer's to call off the strike during the relevant period. Adverse entry had been given without affording an opportunity to the petitioner. Thus, both the communications are liable to be quashed.

On the contrary, Shri K.R. Sirohi, learned  counsel appearing for the Allahabad High Court has submitted that as the files relating to bails had been retained by the petitioner in his Box, the same could not be taken by the Sessions Clerk. The accused persons who had been granted bail had therefore to remain in jail for about a month, and this happened in eight cases. He further submitted that as the petitioner had passed the bail orders as the In-charge District Judge, the question of oral instructions by the District Judge could not arise. The District Judge as a Reporting Officer, did not mention about the bail orders and the Administrative Judge noticed the same during the annual inspection of the Court. The matter had been referred to the Committee of two Hon'ble Judges and the Committee submitted its report that the representation of the petitioner was not worth acceptance. The Administrative Committee considered the case on 10th May, 2003 and rejected the representation considering the fact that in eight cases, the accused remained in jail for about a month because the files had not been sent to the office. The second memorial was rejected by the Hon'ble Chief Justice on 12.3.2004 as the memorial/second representation/review was not maintainable in view of the Full Court Resolution dated 6.1.1990. Thus, no fault can be found with the impugned order. More so, it has been pointed out by Shri Sirohi that the minutes of the Administrative Committee dated 10th May, 2003 revealed that Hon'ble Administrative Judge remained absent when the matter relating to petitioner's representation was being considered in the meeting by the Administrative Committee. This apart, in view of the C.L. No. 53/IV-h-14/84 dated 29th August, 1984 read with C.L. No. C-10/IV h- 14/92 dated 27th January, 1992, it was the duty of the petitioner being the Presiding Officer, to have correctly filled up the statement of out-turn. In the instant case, the A.C.Rs. were not confined only for retaining the files, but the out-turn of the petitioner was very low; and he had given wrong figures. He, therefore, submitted that there was no force in the petition, and it was liable to be dismissed.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.

The adverse entry communicated to the petitioner reads as under:-

"The out turn of the officer is 92.5 % which is short. The District Judge has reported that from the date of joining of the officer at Saharanpur there were 40 Fridays (i.e. Misc. days) but the officer has claimed 49 days as Misc. Days meaning thereby the officer has wrongly claimed 9 more Misc. days on the face of the record. Besides looking to the pendency of the cases in his court he is entitled to only nine misc. days. Thus the officer has wrongly claimed 40 misc. days. He did not comply with C.L. No. 205/IV-h-14/Admn. ''A' dated 23rd December, 1976 as he being the senior most Additional District Judge of the district did not devote 3/4th time to civil work as provided in the above circular letter.  According to C.L. No. 62/IV-h- 14 dated 31st May, 1979 such officer will be subject to comment in the annual entry.

During annual regular inspection of the High Court it was found that in the following eight cases of bail applications the officer while working as Incharge District Judge granted bail to the accused persons on 7th March, 2000. The bail orders were signed by the officer on the same day i.e. 7th March, 2000 but thereafter the files were kept by the officer in his box and were not sent to the office due to which copy of bail order could not be issued by the office for about one month and the accused persons who had been granted bail had to remain in jail for about one month. Copies of those bail orders could be issued only when the officer released these files from his possession on 04.04.2000 to which effect there is an order on the order sheet of every files dated 04.04.2000 under the signature of the officer stating that since the lawyers were on strike therefore the bail order was not issued. On being asked to explain about these files the officer orally accepted before me (in presence of my staff) in the chamber of District Judge, Saharanpur that after signature on the bail orders he retained these files with him and did not send the same to the office for about one month but tried to explain that since the lawyers were on strike therefore he kept the files with him. Neither the employees nor the Judicial Offices of the judgeship were on the strike and the courts and offices were open during this period therefore there was no occasion for the officer to keep these files with him for about a month after granting bail. He could not reply to my question that when the employees and the judicial officers of the judgeship were not on strike and the offices were open why did he not send these files to the office and kept the same with him. He intentionally did so because he knew that as soon as he would sent the files of bail orders to the office copy of the same would be issued and after filing the bail bonds the accused persons would be released. Due to this illegal act and misconduct of the officer the accused persons in these cases who had been granted bail could not be released from jail for about a month. This style of working of such a senior officer is liable to be condemned and he is liable to be censured".

Details of files of bails

1.B.A. No. 326 of 2000 Intesar Vs. State u/s 393 IPC P.S. (Crime No. 1/2000), Police Station Gangoh, District Saharanpur.

2.B.A. No. 327 of 2000 Intezar Vs. State u/s 25 Arms Act (Crime No. 15/2000), Police Station Gangoh, District Saharanpur.

3.B.A. No. 373 of 2000 MehtabVs. State u/s 393 IPC P.S. (Crime No. 1/2000), Police Station Gangoh, District Saharanpur.

4.B.A. No. 378 of 2000 GulzarVs. State u/s 147,148,149,307 IPC P.S. (Crime No. 383/1997), Police Station Kotwali Dehat, District Saharanpur.

5.B.A. No. 379 of 2000 GulzarVs. State u/s 147,148,149,302 IPC P.S. (Crime No. 336/1997), Police Station Kotwali Dehat, District Saharanpur.

6.B.A. No. 394 of 2000 Mukesh Vs. State u/s 376,511 IPC (Crime No. 48/2000), Police Station Kotwali Dehat, District Saharanpur.

7.B.A. No. 406 of 2000 Zahiruddin & 4 others Vs. State u/s 147,308,323,336,325,506 IPC P.S. (Crime No. 4-7/2000), Police Station Kotwali Dehat, District Saharanpur.

8.B.A. No. 422 of 2000 Rizwan Vs. State u/s 394,397,302,411,323 IPC P.S. (Crime No. 296/1998), Police Station Kotwali Dehat, District Saharanpur.

Photo copies of bail orders and order sheets in all the above Cases are annexed herewith as annexure 1 to 8.

In the light of the above the work and conduct of the officer is not up to the mark rather condemnable and the officers censured for his illegal works and misconduct i.e (i) wrongly showing his out turn by claiming 48 misc. days while he was entitled to 9 misc. days only, for the work done at Saharanpur, (ii) not devoting 3/4th time to civil cases as required by the Circular letter mentioned above, and (iii) keeping the bail orders with him illegally for about one month thereby illegally detaining the accused persons in 8 cases in jail for about a month."

The aforesaid entry makes it clear that petitioner had furnished wrong out-turn of the disposal of cases in an attempt to inflate the disposal which, in fact, was very low. He had wrongly shown his out-turn by claiming 49 miscellaneous days while he was entitled to nine miscellaneous days only for the work done. He had not worked in pursuance of the Circular Letter of this Court dated 23rd December, 1976 for devoting 3/4th time to civil work. He retained eight files for a month in his Box after granting bail to the accused therein. The conduct of the officer was not up to the mark for wrongly showing his out-turn etc. It is further evident that when the petitioner made a representation/memorial, a Committee of two Hon'ble Judges was constituted and the Committee submitted the report after local enquiry and hearing the petitioner also, and considering the same the representation of the petitioner against the adverse entry was rejected by the Administrative Committee. The  memorial was rejected by the order of the Hon'ble Chief Justice as not maintainable in view of the Full Court's resolution dated 6.1.1990.

Even otherwise, the law is well settled that once a representation against an order is rejected, an employee cannot make another representation seeking the same relief as held by the Constitution Bench of the Hon'ble Apex Court in Ravindra Nath Bose Vs. Union of India, AIR 1970 SC 470. More so, review of an administrative order is not permissible unless the order is shown to have been based on irrelevant grounds, totally unjust or contrary to law, or the order was prejudicial to a party and had been passed without giving opportunity of hearing provided under the Statute/Rules etc.

A Full Bench of Delhi High Court in K.R. Raghavan Vs. Union of India & Ors., (1979) 2 SLR 478 examined the scope of review of an administrative order and held that the same can be reviewed (i) if it is based on irrelevant ground, (ii) it is unjust, and/or (iii) it is contrary to law.

In Gadde Venkateswara Rao Vs. Government of Andhra Pradesh & Ors., AIR 1966 SC 828 the Hon'ble Supreme Court held that review of administrative order is permissible if (i) there is a mistake of fact or law and (ii) if the order is prejudicial to a party and has been passed without giving an opportunity of hearing to the said party.

Thus, in view of the above, we are of the considered opinion that the memorial sent by the petitioner was not maintainable in view of the Full Court's resolution dated 6.1.1990. Even in the absence of such a resolution, the  memorial was not maintainable because review of an order passed on the  administrative side was maintainable only in exceptional circumstances where the authorities failed to consider the material facts. In the instant case, a Committee of two Hon'ble Judges had been constituted to find out the facts and the Committee had submitted its report after hearing the petitioner also, and on the basis of the same the Administrative Committee took a decision that the representation was not worth acceptance. Review of such an order is not warranted. No satisfactory explanation has been furnished, if the petitioner was  aggrieved of the order of the Administrative Committee dated 10.5.2003, why he could not challenge the same within a reasonable time on the judicial side. Even this petition has been filed after expiry of exactly eight months of the letter of communication dated 19.3.2004 without furnishing any satisfactory explanation for the delay and latches on the part of the petitioner. Petitioner did not hesitate in making scandalous allegations against the Hon'ble Inspecting Judge without verifying the facts and applying for the copy of the minutes of the Meeting of the Administrative Committee dated 10th May, 2003, as getting the certified copy of such documents is permissible under Chapter XL Rule 12 of the Allahabad High Court Rules, 1952. When the learned counsel for the petitioner was asked to explain the conduct of the petitioner for making such allegations without verifying the facts, he submitted that it is the duty of the High Court to submit the reply to the averments made in the petition by filing counter affidavit and producing the entire record before the Court, and there was no obligation on the part of the petitioner for verifying the facts before filing this writ petition. We called for the records and found that the District & Sessions Judge, Saharanpur had recorded adverse remarks for the Year 1999-2000 and the same together with self- appraisal were placed before the Hon'ble Administrative Judge for Court's entry, whereupon the Hon'ble A.J. recorded Court's remarks.  It appears that during annual regular inspection of the district courts, it was found that the petitioner while working as In-charge District & Sessions Judge granted bail to the accused persons of eight cases, but kept the files in his Box and did not send the files to the office. A complaint in this regard that was received was sent to the petitioner on 15.3.2000, but still nothing was done by him and it was only on 4.4.2000 for the first time, record of all bail applications were sent by the petitioner which contained the bail orders dated 7.3.2000. As a result of this lapse, copies of the bail order could not be issued and the accused persons who had been granted bail on 7.3.2000 had to remain in jail for about one month. It is further noticed that against the remarks impugned herein, a representation was moved by the petitioner. The representation was considered by the Administrative Committee in its meeting held on 8.5.2001 when it was directed that the comments of the District Judge be asked and Hon'ble Mr. Justice S.N. Agrawal and Hon'ble Mr. Justice J.C. Gupta be requested to enquire into the matter and give their report. The representation so made by the petitioner was carefully considered, local enquiry was held, and thereafter the Committee of Hon'ble Judges submitted its report, clearly indicating that on 7.3.2000 the petitioner had detained nine bail applications and did not hand over the record of the bail applications which continued to remain with him till 4.4.2000. The record of the Administrative Committee meeting will indicate that the said Hon'ble Judge abstained when the representation of the petitioner was considered. Petitioner has not challenged the orders passed by the Administrative Committee and he has challenged only the letters of communication. We fail to understand as to why he could not apply for the copies of the said orders and challenge the same.

The petition has been filed without any sense of responsibility, and such  attitude adopted by the petitioner is held to be reprehensible. The submission made by the learned counsel for the petitioner is not worth acceptance in view of the provisions of Section 103 of the Evidence Act, 1872.

In State of Rajasthan & Ors. Vs. Nandlal & Ors., 1993 (Suppl) 1 SCC 681, the Hon'ble Supreme Court held as under:-

"What we wish to emphasise is that the allegations made by each of the petitioners has to be established by him. If really the petitioners had asked for supply of certain quantity, there must be some evidence in support of such demand, whether in the shape of challan, indent or some other document. Further, when the ware-house could not supply the indented quantity, they must have made an endorsement to that effect on some document or must have issued the  certificate to that effect. All that material must be in possession of the licensee. It is true that the State cannot merely rely upon the the theory of onus of proof and ought to assist the court in arriving at a fair decision by placing all the relevant material before it. But this obligation cannot be read to mean that the State is under an obligation to establish or make out the writ petitioner's case. The burden lies upon the petitioner, who seeks a particular relief on the basis of certain facts, to establish those facts."

It is settled proposition of law that burden of proof always lies upon the party who makes certain allegations and seeks relief on it. The Court has to address itself whether the party, which has made the allegations, has discharged the burden of proving the allegations. Further, the party must succeed on the strength of its own case rather than on the weakness of the case of the other side. Such a party is under a legal obligation to prove its case irrespective of the fact whether the opposite party has proved its case or not. "A mere destruction of the case of the defendant in absence of establishment of his own case, carries the petitioner nowhere." (Vide J.P. Ravidas & Ors. Vs. Navyuvak Harijan Utthapan Multi Unit Industrial Co-operative Society Ltd. & Ors., (1996) 9 SCC 300; H.M.M. Ltd. Vs. Director General, Monopolies and Restrictive Trade Practices Commission, (1998) 6 SCC 485; Kala & Anr. Vs. Madho Parshad Vaidya, (1998) 6 SCC 573; Moran Mar Basselios Catholicos Vs. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526; and Moran Mar Basselios Catholicos Vs. Thukalan Paulo Avira & Ors., AIR 1959 SC 31).

In A. Raghavamma & Anr. Vs. A. Chenchamma & Anr., AIR 1964 SC 136, the Apex Court has explained the distinction between "burden of proof" and "onus to prove" observing as under:-

"There is an essential distinction between burden of proof and onus to prove; burden of proof lies upon the person who has to prove a fact and it never shifts. The burden of proof in the present case, no doubt, lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence..... It is well settled that a person, who seeks to displace the natural succession to property by alleging an adoption, must discharge the burden that lies upon him by proof of factum of adoption and its validity."

In Kalwa Devadattam & Ors. Vs. Union of India & Ors., AIR 1964 SC 880, the Apex Court has observed as under:-

"The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence, at all, is led on the question in dispute by either side; in such a contingency, the party on whom the onus lies to prove a certain fact, must fail. Wherever, however, evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place, truth or otherwise of the case must always be adjudged on the evidence led by the parties." (Emphasis added).

In view of the above, we are of the considered opinion that the petitioner has made allegations against the Hon'ble Inspecting Judge without any sense of responsibility, in a most casual and cavalier manner without considering it appropriate to verify the facts before making such allegations. The petitioner has an experience as a judicial officer for about 30 years. He therefore, should have filed the petition in a proper manner after verifying the facts, particularly when the verification is permissible under the Rules of this Court. The basic orders could have been challenged after taking copies thereof, rather than challenging the communication letters.

It is strange that the petitioner filed the affidavit in support of his writ petition, wherein the allegations against the Hon'ble Inspecting Judge have been sworn on the basis of personal knowledge. We have no hesitation in holding that the petitioner has audacity to file an absolutely false affidavit before this Court, and such a course cannot be countenanced.

We find no force in the contention raised on behalf of  the petitioner that the two Judges' Committee did not give the petitioner an opportunity to cross-examine the then District Judge, Sessions Clerk and other persons examined by them, as it was not a case of departmental proceedings against him nor any charge-sheet had been served upon him. We are also not able to give any credence to the affidavits of large number of Advocates filed by the petitioner in support of his case as all of them assessing him to be a good officer as filling up the A.C.Rs of the officers is the duty of the Court and not of any other person. More so, the said affidavits have been sworn in and attested only on 18th and 19th August, 2004, though the adverse entry relates to for the period 1999-2000.

In view of the above, we do not see any cogent reason to interfere in the matter on any ground and the petition is, accordingly, dismissed.

17.11.2004

SB/AKSI


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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