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ANIL KUMAR PATHAK AND OTHERS versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Anil Kumar Pathak And Others v. State Of U.P. And Others - WRIT - A No. 28909 of 2003 [2005] RD-AH 3547 (26 September 2005)

 

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

 COURT NO.6

ORDER

On

Civil Misc.Recall Application No.175796  of 2005

In

Civil Misc. Writ Petition No.  28909 of 2003

Anil Kumar Pathak and another........Vs...... State of U.P. and others

 ********

Hon.Tarun Agarwala,J.

The petitioners filed this writ petition praying for the quashing of the order dated 30.4.2003 passed by the Joint Director of Education, by which the representation of the petitioners for the payment of salary was rejected. The petitioners in the writ petition alleged that the salary was illegally been paid to respondent nos.5 and 6. This writ petition was presented in the High Court on 9.7.2003 which came up for admission before the Court on 11.7.2003 on which date the Court granted one month's time to the Standing Counsel appearing on behalf of the respondent nos.1, 2 and 3, namely, the Secretary, Secondary Education Government of U.P., Lucknow, Joint Director of Education, Azamgarh Region, Azamgarh and the District Inspector of Schools, Ballia. The aforesaid petition came up for admission again on 20.9.2004, i.e., after 14 months, and on that date, the Court granted one month's further time to the Standing Counsel appearing on behalf of the said respondents to file a counter affidavit. The petition came up for admission on 18.1.2005 and, again four weeks' further time was granted to the respondents to file a counter affidavit. Inspite of time being granted on three occasions, the counter affidavit was not filed by respondent nos.1, 2 and 3. Consequently, on 2.3.2005 this Court granted three weeks' and no more time to the respondents to file a counter affidavit, failing which, the Court directed the District Inspector of Schools (hereinafter referred to as 'D.I.O.S.') to appear in person on 1.4.2005. From the order-sheet, it transpires that the case was taken up on 15.4.2005, on which date the Court found, that neither the counter affidavit was filed nor the D.I.O.S. was present and, accordingly the Court directed the matter to be listed again on 27.4.2005, on which date, the  D.I.O.S. Ballia was again directed to appear in person and explain under what circumstances the counter affidavit was not been filed. Inspite of this order, the  D.I.O.S. did not appear in person before the Court on 27.4.2005. On 25.8.2005, this Court directed  the learned Standing Counsel to send the information to the D.I.O.S. to appear in person on 1.9.2005.  On 1.9.2005 the  D.I.O.S., Ballia again did not appear in person nor any counter affidavit on behalf of the respondent nos.1, 2 and 3 was filed. Consequently, this Court directed the disciplinary authority to take action against the  D.I.O.S. by suspending him forthwith.

On 6.9.2005, Sri Ram Lotan, the D.I.O.S., Ballia, respondent no.3 filed an application for the recall of the order dated 1.9.2005. In paragraph 5 of the affidavit, the  D.I.O.S. submitted that the orders of the Court dated 2.3.2005, 15.4.2005 and 25.8.2005 were never communicated in the office of the  D.I.O.S. and therefore, the said order could not be complied by him. Further, the order of the Court dated 1.9.2005 was made known to him through a news item published in the news paper on 2.9.2005. In paragraph 7 of the affidavit, the  D.I.O.S. submited that the order of the Court dated 25.8.2005 was received in the office of the District Magistrate, Ballia on 27.8.2005 and that the said order dated 25.8.2005 was received in the office of the  D.I.O.S., Ballia on 29.8.2005 by a peon, Sri Ram Janam, working in the office of the  D.I.O.S. The D.I.O.S. further stated that the entire staff of the office of the D.I.O.S. was busy in the election duty of the Gram Panchayat on 28th and 29th August, 2005. In paragraph 8 of the affidavit, the D.I.O.S. stated that from 29.8.2005 to 1.9.2005, he was at Allahabad, in the office of the Chief Standing Counsel and had he knew about the order of the Court dated 25.8.2005,  he would have appeared on 1.9.2005 before the Court. In view of the aforesaid, the D.I.O.S. submitted that on account of the non-availability of the information about the orders of the Court, he could not comply with the said orders nor could appear before the Court.

The Secretary, Secondary Education, respondent no.1 has also filed a counter affidavit stating that the orders of the Court dated 2.3.2005, 15.4.2005 and 25.8.2005 were never communicated to him. The Secretary further submitted that the Fax message sent from the office of the Chief Standing Counsel dated 15.4.2005 was never received in his office and that the Fax message which was sent on 5.3.2005 was sent to the Joint Director of Education, Azamgarh, who has informed, that even he did not receive the message sent from the office of the Chief Standing Counsel.

In the light of the aforesaid averments made in the two affidavits, it is clear, that the authorities are passing the buck on someone else. Everyone is denying the receipt of the information sent from the office of the Chief Standing Counsel. The D.I.O.S. in his affidavit submitted, that the order of this Court was never communicated to him. The Secretary, Secondary Education, respondent no.1 also stated that no order was communicated to him and that the Fax message sent to the Joint Director was also not received by him. This reflects the state of affairs of the State Government. Even though the respondents deny receiving the 3 Fax messages sent from the office of the Chief Standing Counsel, the respondents however, are silent as to whether they were communicated with the orders dated 11.7.2003, 20.9.2004 and 18.1.2005 of the Court or not.

 The respondents have not denied that the aforesaid orders were never communicated to them. This Court is not concerned as to whether the office of the Chief Standing Counsel had communicated the orders of the Court to the respondents or not. Since the respondents are represented through the Chief Standing Counsel, any order passed by the Court in the presence of the Standing Counsel is deemed to have been served upon the respondents and they are deemed to be in the knowledge of the orders passed by this Cour

In the light of the aforesaid, Sri C.B.Yadav, Chief Standing Counsel was asked as to whether he was still keen to defend the respondents, especially the D.I.O.S. or whether he was keen to defend his office and justify that the Fax messages were actually sent to the authorities concerned. Sri C.B.Yadav, Chief Standing Counsel had no answer to it.

In view of the aforesaid, the question is, who is telling the truth ? Admittedly, 3 fax messages were sent to different authorities. These authorities deny receiving it. On the other hand, the transmission report indicates that the messages were sent to the authorities and were duly received. In my opinion, the respondents are trying to escape from their responsibility by passing the buck to another.

 The order of the Court dated 25.8.2005 was admittedly received in the office of the D.I.O.S. on 29.8.2005 and therefore, the D.I.O.S. had knowledge of the order passed by the Court. The D.I.O.S. submits that he was in Allahabad on  1st September, 2005 and inspite of the fact that 1.9.2005 was fixed for the appearance, he chose not to appear. Further, it is strange for him to allege that the earlier orders were never communicated and it is astonishing, that within 24 hours of the issuance of the order of this Court dated 1.9.2005 directing the disciplinary authority to suspend him, the D.I.O.S. gets the information. The contention of the D.I.O.S. that he received the order of the Court dated 25.8.2005 only on 3.9.2005 is incorrect for the aforesaid reasons. Even otherwise, this fact has been sworn on record and the said record was neither produced nor any proof of it was filed before the Court.

Judiciary is burdened with pending litigation. The High Court is trying to impart justice. It is striving to give speedy justice but is unable to do so, on account of the impediments and road blocks, that has been created by various factors. No party has a right to prolong the litigation. A party must consent to a fair proceeding and ensure quick justice. Speedy justice is a fundamental right which flows from Article 21 of the Constitution of India. Justice delayed is justice denied, and who is responsible for the delay ? What is the cause of the delay ? Was the delay occurred on account of the negligence on the part of the State and its instrumentalities and/or was the delay made on account of the delaying tactics adopted by the State Government or by other parties or was it on account of the circumstances which was beyond the control of the parties?

On one hand, intellectuals, jurists and politicians are harping and emphasing the need for legal and judicial reforms. Questions are being raised in the Parliament with regard to the pendency of the cases in the High Court and with regard to the delay in the disposal of these cases. Fingers are being raised on the working of the High Court. But is anyone looking into the cause of the delay ? Is anyone concerned in bringing a drastic change in the work culture ? In my opinion, one of the root cause for the pendency of the cases and the delay in the disposal of the cases is on account of the lackadaisical attitude on the part of the State Government and its agencies in not filing the affidavits within the time allowed. I find, that the State Government is least bothered in the quick disposal of the cases and, at times, it suits the State Government to prolong the litigation, as in most of the cases, the State is a party in the litigation. The statistics reveals that in 90% of the litigation, the State is a contesting party. The State Government and its agencies are not coming forward within the time allowed to file the affidavits, on account of which, the Court is compelled to grant them further time. In a majority of cases, the State is filing the counter affidavit after almost 3 or 4 years.

The State Government is represented in the High Court by the office of the Advocate General and by the office of the Chief Standing Counsel. The idea was, that the notice of the petition against the State is served in advance, so that, the Standing Counsel could receive the instructions and ensure that no exparte order is passed against the State. The office of the Chief Standing Counsel is a step in aid for speedy justice. The office of the Chief Standing Counsel has to ensure that order of the Court are complied with and the affidavits are filed at the earliest opportune moment so that the justice delivery system of the Court works smoothly and is not hampered by prolonging the case by seeking time and again for filing the counter affidavit. Such impediments, so placed by the State Government in seeking time continuously, amounts to an interference in the administration of justice.

When the Court directs, that certain orders are complied within a stipulated period, the office of the Chief Standing Counsel is required to communicate the order to the authority concerned and  ensure that the message/communication sent by the office has been received by that authority. In the present case, the office of the Chief Standing Counsel had sent three fax messages to three different authorities but never bothered to find out as to whether the said messages were received by the authority concerned or not. The result can be seen. These authorities are now alleging that they had never received the messages though the transmission record indicates that the fax was duly received at the other end.

Over the past few months, I have been noticing the problems occurring in the office of the Chief Standing Counsel. As per the  information given by the Standing Counsel from time to time, the office of the Chief Standing Counsel does not have the requisite funds to send the letters to the authorities intimating them the orders of the Court and when the matter becomes urgent, namely, where the Court directs an authority to appear in person, in that eventuality, messages are sent by fax. The learned Standing Counsel on various occasions, intimated the Court that there is only one telephone line dedicated to the fax machine and that the fax machine goes out of order on account of excessive usage.

If the office of the Chief Standing Counsel is facing a difficulty in communicating the orders of the Court, it has to take up the matter with its Government. If they are unable to communicate the orders of the Court, in  that eventuality they must close their office.  We are working in a modern times where information can be sent across in a matter of minutes. We have improved telephone lines. We have fax machines. We have the Internet facilities and even the postal department has introduced a courier facility. At the moment, the Court finds that instead of improving their legal department, the State Government has taken a step backward. Instead of filing the affidavits within the stipulated period, the Government is taking 3 to 4 years for filing the counter affidavit.

The citizens of India are a patient lot but cannot wait indefinitely to get justice. There is a limit of tolerance. While I was dictating this  order in open Court, a section of Advocates came inside the Court Room and submitted that the Members of the Bar Association is  abstaining from work on account of a scuffle between a section of Advocates with the police on account of the security arrangement made by the District Administration for the arrival of the Chief Minister at Allahabad. Strikes by Advocates is another factor which has led to the delay in the speedy disposal of the cases.

In view of the aforesaid, I find, that the affidavits submitted by the D.I.O.S. and the Secretary, Secondary Education unsatisfactory. The authorities have not stated, that they were never communicated with the earlier orders of the Court dated 11.7.2003, 27.9.2004 and 18.1.2005. The Court is not inclined to believe that none of the three fax messages did not reach to any of the three authorities. The record of the Standing Counsel indicates that all the orders of the Court was communicated by the office of the Chief Standing Counsel to the authority concerned. Further, all the orders were passed in the presence of the Standing Counsel. Therefore, the respondent nos.1, 2 and 3 had knowledge about those orders. The order of this Court dated 25.8.2005 was, admittedly received in the office of the D.I.O.S. and, therefore the D.I.O.S. is deemed to have knowledge about the order of the Court dated 25.8.2005.

This Court by an order dated 1.9.2005 had directed the Secretary, Secondary Education to suspend the  D.I.O.S., Ballia forthwith. This order was communicated to him soon thereafter and it has taken the Secretary three weeks to issue the order of suspension. The D.I.O.S., Ballia has now been suspended by an order dated 23.9.2005. When the Court uses the word 'forthwith', the authority is required to act on the order instantly. The word 'forthwith' does not mean three weeks'. The Secretary, Secondary Education is, therefore, also  guilty of the negligence.

The Court is not interested in suspending the authority or passing strictures against an authority. The Court is only interested in ensuring that its orders are complied with. If the orders of the Court are not complied with, in that event, the authority concerned is responsible for causing interference in the administration of justice.

In view of the aforesaid, I do not find the explanation given by the D.I.O.S. and the Secretary, Secondary Education satisfactory. However, since a counter affidavit has now been filed on behalf of the respondents, in the interest of justice, the recall application is partly allowed. I direct the Secretary, Secondary Education to recall the order of suspension dated 23.9.2005. However, the disciplinary proceeding would continue against the D.I.O.S. and the authority is directed to impose a minor penalty of a fine of  Rs.1000/- for non-complying the order of the Court.

The said inquiry and consequential order shall be passed by the authority within two weeks from the date of receiving a certified copy of this order, which shall be made available by the Registry to the Chief Standing Counsel within one week from today. The Chief Standing Counsel shall ensure that the copy of the order is served upon the Secretary, Secondary Education within 24 hours thereafter. Compliance  of the order by the Secretary, Secondary Education be placed before the Court  on or before 20th October, 2005.

The Secretary, Secondary Education is also warned that in future he should comply with the directions of the Court immediately and should not delay the matter, failing which action would be taken against him.

Dated: 26.9.2005

AKJ.

Hon. Tarun Agarwala, J.

Counter affidavit on behalf of the respondent nos.5 and 6 have been filed today, are taken on record.

Three weeks' time is allowed to the petitioner to file rejoinder affidavit. List on 17.10.2005 along with record of Writ Petition No.14386 of 1992, decided on 19.3.2002 and Writ Petition No. 19672 of 1986 decided in 1987.

Recall application No.175796 of 2005 is allowed. The order dated 1.9.2005 in so far as the direction of the Court in relation to the suspension of the D.I.O.S., Ballia is concerned, is recalled.

For orders in detail, see order of date passed on separate sheet.

Dated: 26.9.2005

AKJ.


Copyright

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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