A glimpse on the functioning of Hon’ble Allahabad High Court -Request for conducting enquiry in the matter - extracts of Counter affidavit
Civil Misc. Writ Petition No 36236 of 2008 (District- Auraiya)Committee of Management, Kisan Educational Society, Bhagya Nagar, District Auraiya, through its Manager/Secretary Sri Ashok Kumar Saxena and another Petitioners Versus State of U.P. and others –Respondents -A COUNTER AFFIDAVIT of Shailendra Gupta aged about 26 years son of Sri Prem Chandra Gupta, resident of village – Khanpur Phaphund, Post- Bhagya Nagar, District Auraiya, Manager, , Kisan Educational Society, Bhagya Nagar, District Auraiya. On behalf of Committee of Management, Kisan Educational Society, Bhagya Nagar, District Auraiya, through its Manager Shailendra Gupta(Applicant / Respondent No. 4) was filed stating therein that the dispute was pertaining to the recognition of the office bearer of society remained between one Ashok Yadav and Shailendra Gupta, but the wit petition is filed by Ashok Saxena. The prescribed authority recorded the finding regarding manipulation and fabrication of the very election proceedings on the basis of C/M managed by Ashok Yadav has set up the case. It was found that impersonation of another identity of Ashok Yadav, President Of Samajwadi Party in District Auraiya, how Ashok Saxena can manipulate the entire election proceedings, but Hon’ble Mr. Justice Dileep Gupta, Inspite hearing the matter for consecutive days for atleast more than 2 hours on the question that as Fraud and Justice do not dwell together, and order obtained by Committing a Fraud is a Nullity, allowed the writ petition without even mentioning the reference of Counter affidavit, nor any word about filing of an Application of U/S 193 I.P.C. read With Application U/S 340 Cr. P.C. and application U/Article 215 of Constitution of India. since the writ petition was based upon falsehood and an attempt to mislead this Hon’ble court by making the inconsistent stand, and a false representation is made by fabricated and forged documents as annexure No. 1 and 4 , which were never filed before the prescribed authority and the stand taken in the contends of these document is self exposed falsehood and as such an application has been given to take the action against petitioner for committing the offence of Perjury as well as abuse of the process tantamounting to the offence of criminal Contempt. That sacrosanct functioning of this Hon’ble Court required to be maintained upon accuracy in factual averments, but not deception. The rigorous sensation created by falsehood to defeat the truth may lead to fraud and than the protocol requires to cross check, as this Hon’ble Court may be prevented from being deceived and as such the present counter affidavit is filed to reply the contends of Writ Petition at the initial stage of arguments. That firstly a device was adopted before the prescribed authority by committing the interpolation of the name of Ashok Yadav by cutting “Yadav” and Inducting “Saxena” in its place, while the proposal was made for the name of Ashok Yadav By Ashok Saxena himself in the alleged election proceedings dated 23.5.2006 introduced by rival party of Ashok Yadav. The order impugned is passed between Ashok Yadav Versus Ashok Saxena, While Writ is Filed by Ashok Saxena by misrepresenting Secretary cum Manager nor the president of the Committee of Management, Kisan Educational Society, Bhagya Nagar, District Auraiya. That in reply to the contents of paragraph 1 and 2 is concerned that Ashok Kumar Saxena has introduce himself by playing fraud with the prescribed authority by deleting the name of Ashok Yadav and in its place, making the cutting of Surname “Yadav” and inserted “Saxena” in the very such fabricated alleged Election proceedings dated 23.5.2006 Election set up by Ashok Yadav Than District President of Samajwadi Party, Auraiya and there by making an abuse of process before prescribed authority. Now before this Hon’ble court , the misrepresentation is given by introducing forged documents filed as Annexure No. 1( dated 27.8.2006) , which has been concocted and fabricated and is being first time before this Hon’ble Court, and in Annexure No. 4 ( undated) , Which were not even filed at any time before prescribed Authority. That in reply to the contents of paragraph 1 and 2, the deponent further submit that introducing forged documents filed as Annexure No. 1( dated 27.8.2006), Which was not filed any time before prescribed Authority. Now It has been introduced in the writ petition filed by the petitioners, who are neither the recognized outgoing Secretary cum Manager nor the president of the Committee of Management, Kisan Educational Society, Bhagya Nagar, District Auraiya, nor office bearer of Institution namely Kisan Inter college, Bhagya Nagar, District Auraiya. That in this manner, Ashok Kumar Saxena is now misrepresenting himself to be inducted as Secretary/ Manager of Committee of Management, Kisan Educational Society, Bhagya Nagar, District Auraiya, While Ashok Yadav remained representing himself to be the Secretary/ Manager of Committee of Management, Kisan Educational Society, Bhagya Nagar, District Auraiya before the prescribed Authority/ Sub Divisional Magistrate, Auraiya through out in the referring order made by Deputy Registrar, Firms, Societies evam Chits, Kanpur Region, Kanpur dated 27.7.2006 and from the office of Prescribed Authority/ Sub Divisional Magistrate, Auraiya, District Auraiya dated 24.8.2007 till passing of Impugned order passed in case No. 1 of 2006 Ashok Yadav Versus Shailendra Gupta decided by prescribed Authority on 18.6.2008 U/s 25 (1) of the society Registration Act. The present writ petition is not maintainable. That even otherwise Ashok Yadav cannot become Secretary of the society, nor the manager of the institution run before continuing for the 5 years membership of the society in accordance with bye-laws of the society as according to Page-3 of the Bye-laws, no person without completing 5 years membership could be elected as manager of the committee of management. That Ashok Yadav is now confined in Jail on account of his involvement in criminal cases pending in the Court of Fast Track Court/A.D.J. Auraiya having S.T. No. 194/2007 P.S. Dibiyapur U/S 307 I.P.C., In the Court of C.J.M. Auraiya case No. 619/ 2008 Case Crime No. 51/2008 U./S. 3 (10) U. P. Gunda Act, and a case crime No. 28/2008 U/S/307 I. P.C. and many other cases pending in different stage and lying in different Police Station and Courts. Thus there is no right to file present Writ petition before this Hon’ble Court for challenging the order of prescribed authority dated 18.6.2008 before this Hon’ble Court. That in reply to the contents of paragraph3, the deponent further submit that petitioner No. 2, Raj Narain Saxena, alleging himself as President, Kisan Educational Society, Bhagya Nagar, District Auraiya is not the recognized Out Going President of Committee of Management, Kisan Educational Society, Bhagya Nagar, District Auraiya, nor office bearer of Institution namely Kisan Inter college, Bhagya Nagar, District Auraiya. He is now filing writ petition in individual/personal capacity by misrepresenting himself as president, but he was neither recognized President in out going Election conducted in 2003, nor he had the right to conduct such election as are being alleged on 23.5.2006. That in the same place , it has been introduced first time that it was not Ashok Yadav, who was elected manager of the committee of management, but it was Ashok Kumar Saxena.. Sri Ram Prakash Rajpoot, who conducted the election on 28-5-2003, was duly recognized by the Regional Level Committee, in which the claim set up by Ved Prakash Gupta as that of Manager on the basis of his alleged election proceedings dated 13.5.2003 under the Presidentship of Raj Narain Saxena was denounced by the Joint Director of Education The District Inspector of Schools also attested the signatures of Ram Sewak Gupta as the Manager on 15-9-2003 and communication of said attestation of signature was made by another letter issued on 16-9-2003 from the office of District Inspector of Schools. That in reply to the contents of paragraph3, the deponent further submit that it is falsely stated that Raj Narain Saxena is the out going president or ved prakash gupta is out going manager. Since a fraud has been committed by petitioner in filing the present writ petition, the election proceedings of the office bearer of Society were conducted simultaneously on one day along with the election of Committee of Management of Institution in respect of previous election on 28.5.2003, which were conducted after due Agenda published on 14.5.2003 under the signatures of Sri Ram Prakash Rajpoot, who conducted the election on 28-5-2003. In the aforesaid election Sri Ram Prakash Rajpoot was elected as the President, while Sri Mahabir Prasad Gupta was elected as Vice-President of committee of management, Sri Ram Sewak Gupta was elected as Secretary /Manager and Shailendra Gupta was elected as the Assistant Manager in the said election. It is submitted that the last renewal of registration of society was done on 28.2.2006 during the period of erstwhile manager Ram Sewak Gupta and list of members of general body comprising of 146 members was also forwarded for intimation and approval to the Deputy Registrar, Firms, Societies and Chits, Kanpur. That in reply to the contents of paragraph3, the deponent further submit that the said election of committee of management Sri Ram Prakash Rajpoot, who conducted the election on 28-5-2003, was duly recognized by the Regional Level Committee, in which the claim set up by Ved Prakash Gupta as that of Manager on the basis of his alleged election proceedings dated 13.5.2003 under the Presidentship of Raj Narain Saxena was denounced by the Joint Director of Education That Ved Prakash Gupta and one Raj Narain Saxena falsely alleging them to be Manager and President filed writ petition no. 44489 of 2003, in which the effect and operation of order dated 11.9.2003 passed by Joint Director of Education was stayed on 29.9.2003. That in furtherance of the said order on 30-10-2003 the institution was placed on single operation in compliance of interim order dated 29-9-2003, but the other functioning of management still remained in supervision of duly elected manager Ram Sewak Gupta and the meetings were conducted by the duly elected President Sri Ram Prakash Rajpoot. Ved Prakash Gupta and Raj Narain Saxena, who have filed the writ petition no. 44489 of 2003 sought for dismissal of writ petition in pursuance of an application no. 117978 of 2005. The writ petition no. 44489 of 2003 was dismissed as not presses vide order dated 26.5.2005. The disposal of said writ petition no. 44489 of 2003 was done along with writ petition no. 41453 of 2006 on 10.8.2006. That Ram Sewak Gupta on account of his old age had given up the responsibility on the post of Manager to the Deputy/Assistant Manager Shailendra Gupta and in furtherance of the said resolution since the Ram Sewak Gupta had shown his incapability to discharge his duties as Manager of institution, the Deponent, Shailendra Gupta was handed over the said responsibility. That the Regional Level Committee also recognized the Deponent as the Manager in the meeting dated 17-4-2006 and the information to this effect was duly communicated on 18-4-2006 from the office of Joint Director of Education. That the Agenda of fresh election was also issued simultaneously on 17.4.2006 under the presidentship of Sri Ram Prakash Rajpoot and thereafter Sri Ram Prakash Rajpoot conducted the election of committee of management on 14.5.2006, in which the deponent was elected as the Manager of committee of management of institution. That the fabricated election proceeding being manufactured in the alleged election alleged to have been conducted on 23-5-2006, there have been 150 members of society shown participating in the said election, in which the name of 70 persons are such who never remained as the member, nor they deposited any amount of membership fees in the Account of Central Bank bearing S.B. Account no. 4858 belonging to the institution. That the list submitted dispute referred to the Prescribed Authority/Sub Divisional Magistrate, District Auraiya has taken note of the facts that there is total membership of 146 members as there remained 80 members which are common in the list submitted by Ram Sewak Gupta as Manager on 28.2.2006, while for enrolling 66 members the amount of Rs. 66066/- was deposited by the Manager in accordance with clause 14 (3) of Scheme of Administration. That the said amount is already demonstrated to have been deposited in the Account of institution, but the order was passed without waiting for the decision of the alleged membership of Ashok Yadav as the primary membership of the Society. Thus the matter pertaining to the reference made to Prescribed Authority u/s 25 (1) of Societies Registration Act has been decided on 18.6.2008 against the rival set up of claim of Raj Narain Saxena and Ashok Yadav. That by the Judgement passed on 6.9.2006 passed in Writ petition No. 47402 of 2006 C/M Kishan Inter College , Bhagya Nagar, Auraiya through Manager Shailendra Gupta Versus State of U. P, it was directed to Ashok Yadav that he will deposit Rs. 20,000/-, Which he had illegally withdrawn from the account of the institution. The Special Appeal No. 1241 of 2006 filed by Ashok Yadav on 4.10.2006 Challenging the Judgement passed on 6.9.2006 passed in Writ petition No. 47402 of 2006 C/M Kishan Inter College , Bhagya Nagar, Auraiya through Manager Shailendra Gupta Versus State of U. P filed by Ashok Yadav was also dismissed. That in Special Appeal No. 1241 of 2006 filed by Ashok Yadav on 4.10.2006 Challenging the Judgement passed on 6.9.2006 passed in Writ petition No. 47402 of 2006 C/M Kisan Inter College , Bhagya Nagar, Auraiya through Manager Shailendra Gupta Versus State of U. P. filed by Ashok Yadav on 4.10.2006 denouncing the claim set up by Ashok Saxena regarding alleged resignation of Ashok Yadav to mislead. That in reply to the contends of paragraph 4 of the writ petition, It is submitted that 12 members are elected from amongst the members of general body, while three members are elected as PADEYAN Members. These three padeyan members are elected every year, It is submitted that apart from these 12 members, , Sri Vikram Singh Rajpoot, Sri Chotey Lal Kushwah and Sri Krishan Rajppot were elected as Padeyan Members by the general Body in the election dated 14.5.2006. It is submitted that Ashok Yadav and Raj Narain Saxena in their alleged election dated 23. 5. 2006 shown to have elected 12 office bearers but made further manipulation by introducing the names of three members in such concocted claim of having being conducting any such election for which they were not entitled for. Thus the Contends of para 4 are false and thus emphatically denied. That in reply to the contends of paragraph 5, 6, and 7 of the writ petition, It is submitted that That it is falsely stated that Raj Narain Saxena is the out going president or ved prakash gupta is out going manager in paragraph 3 of writ petition. Since a fraud has been committed by petitioner in filing the present writ petition, the election proceedings of the office bearer of Society were conducted simultaneously on one day along with the election of Committee of Management of Institution in respect of previous election on 28.5.2003, which were conducted after due Agenda published on 14.5.2003 under the signatures of Sri Ram Prakash Rajpoot, who conducted the election on 28-5-2003. In the aforesaid election Sri Ram Prakash Rajpoot was elected as the President, while Sri Mahabir Prasad Gupta was elected as Vice-President of committee of management, Sri Ram Sewak Gupta was elected as Secretary /Manager and Shailendra Gupta was elected as the Assistant Manager in the said election. It is submitted that the last renewal of registration of society was done on 28.2.2006 during the period of erstwhile manager Ram Sewak Gupta and list of members of general body comprising of 146 members was also forwarded for intimation and approval to the Deputy Registrar, Firms, Societies and Chits, Kanpur. There was no right conferred upon Raj Narain Saxena or Ved prakash Gupta to conduct any such election as said to have been conducted and further manipulated on 23. 5.2006. firstly a device was adopted before the prescribed authority by committing the interpolation of the name of Ashok Yadav by cutting “Yadav” and Inducting “Saxena” in its place, while the proposal was made for the name of Ashok Yadav By Ashok Saxena himself in the alleged election proceedings dated 23.5.2006 introduced by rival party of Ashok Yadav. The order impugned is passed between Ashok Yadav Versus Ashok Saxena, While Writ is Filed by Ashok Saxena by misrepresenting Secretary cum Manager nor the president of the Committee of Management, Kisan Educational Society, Bhagya Nagar, District Auraiya. Ashok Yadav, than District President of Samajwadi Party, Auraiya and there by making an abuse of process before prescribed authority. Now before this Hon’ble court , the misrepresentation is given by introducing forged documents filed as Annexure No. 1( dated 27.8.2006) , which has been concocted and fabricated and is being first time before this Hon’ble Court, Thus the contends of Para 5 and 6 are emphatically denied. That in reply to the contends of paragraph 8 of the writ petition, It is submitted that that. Ashok Kumar Saxena has introduce himself by playing fraud with the prescribed authority by deleting the name of Ashok Yadav and in its place, making the cutting of Surname “Yadav” and inserted “Saxena” in the very such fabricated alleged Election proceedings dated 23.5.2006 Election set up by Ashok Yadav,than District President of Samajwadi Party, Auraiya and there by making an abuse of process before prescribed authority. Now before this Hon’ble court ,the misrepresentation concocted and fabricated and is being first time before this Hon’ble Court, and in Annexure No. 4 ( undated) , Which was not even filed at any time before prescribed Authority. It is submitted that 12 members are elected from amongst the members of general body, while three members are elected as PADEYAN Members. These three padeyan members are elected every year, It is submitted that apart from these 12 members, Sri Vikram Singh Rajpoot, Sri Chotey Lal Kushwah and Sri Krishan Rajppot were elected as Padeyan Members by the general Body in the election dated 14.5.2006. That in reply to the contends of paragraph 9, 10 and 11 of the writ petition, It is submitted that it is falsely stated that Raj Narain Saxena is the out going president or ved prakash gupta is out going manager. The order passed by prescribed authority is based upon the every issue raised by the party referred to the prescribed authority The election of Deponent’s Committee conducted has been conducted on 14.5.2006 validly conducted, as the deponent’s was elected secretary/ Manager of Committee, Kisan Educational Society, Bhagya Nagar, District Auraiya, which was only empowered to conduct such election. Thus the Contends of paragraph9, 10 and 11 of Writ petition are denied as false and baseless. That in reply to the contends of paragraph 12 of the writ petition, It is submitted that Raj Narain Saxena, alleging himself as President, Kisan Educational Society, Bhagya Nagar, District Auraiya is not the recognized Out Going President of Committee of Management, Kisan Educational Society, Bhagya Nagar, District Auraiya, nor office bearer of Institution namely Kisan Inter college, Bhagya Nagar, District Auraiya. It is submitted that prescribed authority has no where recognize the Committee of Ashok Yadav or Raj Narain Saxena as Outgoing recognized Committee of Management, Kisan Educational Society, Bhagya Nagar, District Auraiya, Thus the Contends of paragraph 12 of Writ petition are false and baseless. That in reply to the contends of paragraph 13 of the writ petition, It is submitted that , Ashok Kumar Saxena has introduce himself by playing fraud with the prescribed authority by deleting the name of Ashok Yadav and in its place, making the cutting of Surname “Yadav” and inserted “Saxena” in the very such fabricated alleged Election proceedings dated 23.5.2006 of Election set up by Ashok Yadav, than District President of Samajwadi Party, Auraiya and there by making an abuse of process before prescribed authority. Now before this Hon’ble court , the misrepresentation is given by introducing forged documents filed as Annexure No. 1( dated 27.8.2006). Thus the Contends of paragraph 12 of Writ petition are denied as false and baseless. That in reply to the contends of paragraph 14, 15 and 16 of the writ petition, It is submitted that it is falsely stated that Raj Narain Saxena is the out going president or ved prakash gupta is out going manager. The order passed by prescribed authority is based upon the every issue raised by the party referred to the prescribed authority. The election of Deponent’s Committee validly conducted on 14.5.2006 as the deponent’s was Committee, Kisan Educational Society, Bhagya Nagar, District Auraiya was only empowered to conduct such election. That the name of Girish Chandra Saxena has been shown twice at serial No. 49 and serial no. 89 in the said list of members of society. The name of Meera Yadav has also been manipulated twice at Serial no. 99 and 106 twice in the said election. The true copy of the extract of such cutting in the tempered manner on the fabricated proceeding of alleged election proceeding dated 23.5.2006 said to have been conducted. That the individual Sri Pramod Nigam, who has been alleged to participate in the said proceedings, has submitted his affidavit denouncing the existence of any such election on 23.5,2006. Thus Raj Narain Saxena and Ashok Yadav have further manipulated in the alleged proceedings even to denounce the existence of the claim set up by Ashok Yadav. Thus the contends of paragraph 14, 15 and 16 of the writ petition are denied as false and baseless. That in reply to the contends of paragraph 17 and 18 of the writ petition, It is submitted that there was neither any power vested with Raj Narain Saxena as the out going president or ved prakash gupta as out going manager to conduct such election. Even if it is found that the stay was granted to the decision of regional level joint director of education dated 11.9.2003 committee constituted in furtherance of govt. order dated 19.12.2000 against Sri Ram Prakash Rajpoot duly recognized committee in writ petition no. 44489 of 2003, the disposal of said writ petition no. 44489 of 2003 was done along with writ petition no. 41453 of 2006 on 10.8.2006. The effect of Stay order does not wiped out the existence of order. M/S shree chamundi Moped AIR 1992 S.C. 1439. Since a fraud has been committed by petitioner in filing the present writ petition, the election proceedings of the office bearer of Society were conducted simultaneously on one day along with the election of Committee of Management of Institution in respect of previous election on 28.5.2003, which were conducted after due Agenda published on 14.5.2003 under the signatures of Sri Ram Prakash Rajpoot, who conducted the election on 28-5-2003. In the aforesaid election Sri Ram Prakash Rajpoot was elected as the President, while Sri Mahabir Prasad Gupta was elected as Vice-President of committee of management, Sri Ram Sewak Gupta was elected as Secretary /Manager and Shailendra Gupta was elected as the Assistant Manager in the said election. It is submitted that the last renewal of registration of society was done on 28.2.2006 during the period of erstwhile manager Ram Sewak Gupta and list of members of general body comprising of 146 members was also forwarded for intimation and approval to the Deputy Registrar, Firms, Societies and Chits, Kanpur. Thus the Contends of paragraph 17 and 18 of Writ petition are denied as false and baseless. That the writ petition filed by committing all such fraud may be dismissed with exemplary cost, as justice may not be circumvented , prejudiced and nullified by reprehensible conduct of petitioner.
Whether Advocates, representing their clients are not accountable for committing dereliction in due discharge of their duties, Why not the Hon’ble Judge may become accountable for circumventing the rights of the counsel appearing before them?
Showing posts with label save indian judiciary. Show all posts
Showing posts with label save indian judiciary. Show all posts
Thursday, August 21, 2008
Wednesday, August 20, 2008
legal Institution and Justice
Legal institution and justice
"I am unjust , but I can strive for justice ,
My life’s unkind ,but I can vote for kindness.
I, the un-loving, say life should be lovely,
I, that am blind , cry against my blindness
Justice is the end of government just to enjoy the peace of mind. Law is a means to an end. The essence of law is duty. It is a result of constraint struggle; an struggle of conflict with a view to attain peace and order. Law is the guaranty of condition of life in society assured by the state‘s power constrain. Thus the legal institution may provide the stability in the political sphere ,if we start thinking in the process of rectification of the present problem enunciated by theoretical approach and by the correct analysis of the sociological jurisprudence to promote sociological study in connection with the legal study is the fundamental right for preparation of legislation , which may improve by intelligent effort discovering the best means of furthering and directing such efforts . Thus it is very essential to learn the basic principle of jurisprudence and adopt a positive approach for imparting the justice to the individual litigant in the society.
Jurisprudence means systematic knowledge of the law .It is known as science of law Thus the jurisprudence may be considered to be systematic arrangement of the principle of the law the principle of the law, the principle duly recognised or enforced by the public and legal institution in the administration of the justice .The general rule of external human action enforced the sovereign political authority in the common law . Jurisprudence is concerned with fundamental conception , the sovereignty does not reside in the legislatures or executives ,but in the total aggregate of persons , who are members of state and are primarily represented by the existing body of electors. The instrumentality of sovereign is endowed with powers to be exerted with on behalf of the legislature cannot invoke the sovereign power of the people to override their will . Thus the sovereignty is vested in the people and not with the government to exercise their sovereign powers . If the government ignores the protection of social interests of the people then it has no authority to discharge its sovereign powers. Thus one has to find that the sovereign power is exercising its functioning in the ultimate interest of the people , which may attribute sovereignty to that entity .
Jurisprudence is the eye of law. It is innovation of the legal invention for protection of Human behaviour, which maintain intense relationship for advancement of mankind . Thus the jurisprudence is the wisdom of law , which is the ultimate purpose in pursuit of the advancement of Human conduct , If we are not aware with the realities of the life and the problems of the society , we may not be discharging the duties of sovereignty . The legal institution may not serve its purpose if other considerations have the over riding effect and there after the habitual obedience from bulk of human society will completely be vanished . Thus there should be the attempt to change the law within a reasonable living stream , but it may not become stagnant pool of conflicting precedents. If the subject of the law is the science of the man to the political ethics , the legislation may perfectly regard to discharge its duty in the strictest sense The science is not limited to the study of external conduct. Thus the first requirement of law is to correspond with the actual feeling and demand of community . The guardian of the law have made no serious efforts to curb the number of cases and they could not be worked out inspite several assurance of the Hon’ble Court.
The Hon’ble Supreme court in the S.P. Sampath Kumar Vs Union of India 1987 (1)SCC Page 124 , while dealing with the provision of section 28 of the Administrative Tribunal Act , 1965 , laid down that the exclusion of the High Court jurisdiction under the Article 226 and 227 of judicial review in service matters It was held by the five Hon’ble Judges of the Hon’ble Supreme Court concurring judgement that the said act would not be rendered unconstitutional .It was held that Article 323-A authorising exclusion of the jurisdiction must provide for an effective alternative institutional mechanism or authority for judicial review . The supreme Court has referred the decision of Minerva Mills Ltd. Vs Union of India A.I.R 1980 S.C Page 1789 wherein it was held that the judicial review is the basic and essential feature of the constitution and if the power of judicial review is abrogated or taken away the constitution will cease to be what it is. However it was held that if the power of the high court are curtailed from judicial review and it is vested in any other institutional mechanism or authority , it would not be violative of basic structure doctrine.
The central administrative tribunal was given the jurisdiction parallel to the jurisdiction vested under Article 226 and 227 of the High Court. By virtue of such power it was held in the case of union of India Vs Paramananda A.I.R 1989 S.C Page 1185 that " we must unequivocally state that the jurisdiction of the tribunal to interfere with the disciplinary matters for punishment cannot be equated with an appellate jurisdiction . The tribunal cannot interfere with the finding of the enquiry officer or competent authority , where there are no arbitrary or utterly perverse . It is appropriate to remember that the power to impose penalty on a delinquent officer , is conferred on competent authority either by Act of legislature or rules made under the provision of article 309 of the constitution . If there has been an enquiry consistent with the Rules and in accordance with the principles of natural justice , what punishment would meet the ends of justice is matter exclusively within the jurisdiction of the competent authority or the penalty can be lawfully imposed and is imposed on the proved misconduct , the tribunal have no power to substitute to his own discretion for that of the authority .This principle was consistently followed in Govt. of Tamilnadu Vs A Raza Pandian A.I.R 1995 S.C.Page 561 ,State of Tamilnadu Vs S . Subramanian A.I.R 1996 S.C Page 1232 and state of Tamilnadu Vs Thiru K.V Perurmal A.I.R1996 S.C page 2474 .
The supply of th ecopy of the enquiry report to the delinqent seeking his explanation against the proposed action was considered after the case of Union of India Vs Ramzan Khan J.T 1990 (4) S.C page 556 , in the case of Managing Director ECIL Hyderabad Vs B.Karunakar reported in J.T 1993 (6) S.C page 1 was considered that it is the right of the employee to have the report to defend himself effectively and he would not know in advance whether the report is in his favour or against him . It will not be proper to construe his failure to ask for the report ,as waiver of his right .However , this precedent remain valid upto the period when the supreme court in the case of S.K.Singh Vs Central Bank of India 1996 (6)S.C.C page 415 has laid down that the non supply of enquiry report is in consequential if no prejudice is caused. The Hon’ble Supreme court in the case of State Bank Patiala Vs S.K. Sharma reported in A.I.R 1996 S.C page no 1669 has laid down that an order passed imposing a punishment on an employee consequent upon the departmental enquiry ,while dealing with such case ,.The Hon’ble Court in case of a procedural provision mandatory in character if found to have waived or in such situation where the rule of Audi -Alteram partem has not been applied ,then the order of punishment cannot be set-aside on the ground of said violation until the test of prejudice may be called to the delinquent. Thus ultimately further curtailing the scope of judicial review as was being exercised by the central administrative tribunal was visualised during the course of arguments and in getting the judgement from the Tribunal to the delinquent Govt. Servant was visualised during this period .
The Hon’ble Supreme Court in the judgement reported in 1997(3) S.C.C page 261 L.Chandra Kumar Vs Union of India consisting of seven Hon’ble judges has now over ruled the earlier judgement of five Hon’ble Judges constitutional bench in Sampath Kumar case. It has been laid down on the basis on the basis of Keshavanand Bharti case decided by the power of judicial review vested in the High Court under the Article 226and 227 is part of the basic structure of the constitution . Judicial review comprises of three aspects ;Judicial review of legislative action , Judicial review of judicial decisions and judicial review of Administrative action tribunal is not a substitute for the high Court .Thus section 28 of the Administrative tribunal Act divesting the jurisdiction of of the High Court in relation to the service matter and article 323-A and 323-B of the constitution of this extent are unconstitutional . The Hon’ble Supreme court has laid down that until a whole independent agency for administration of all such Tribunals may not be set up and the entire system may not be languished and ultimate consumer of the justice under the supervision of the Administrative function may not be formulated by the Union of India .The system may carry on and the tribunal will continue to act like courts of first instance in respect of the areas of law which they have been constituted .Thus the tribunal on account of this judgement instead of exercising the power of judicial review as is being exercised by the High Court under Article 226 and 227 of the constitution of India is conferred with the jurisdiction of the court of first instance in respect of areas referred under sec 14 and 15 of Administrative tribunal Act , 1985
Now the question arises what is the significance of judicial accountability in respect of conflicting judgement of the Apex court which are meant to exercise the jurisdiction as that of the law of the nation. The first requirement of a sound body of law is that it should be correspond with the actual feeling and demand of the community. A law embodies beliefs that has triumphed in the battle of ideas and then translated themselves into action . The legal Institution of the knowledge of jurisprudence and the social requirement of imparting justice to the litigants requires that the exercise of the judicial precedents may not be top harror and unconscionable as it may loss site from the very basis for which the law is meant for we cannot confine ourselves to the formal legal; materials ,but we have to go beyond to find out now people actually live in the society . The centre of gravity of legal development lies not in legislative nor jurist’s science nor in judicial decision but in society itself . If we want the real law regulating the people , we have to become aware with the hardships suffered by the litigant people and for now the same is being is ignored as what is in actual practise governing the relations of the employer and employee , some limit has to be drawn because otherwise jurisprudence will dissipate its energy over too widen area .
The requirement of the society in the present political set-up is not mere formality , but it requires an accountability of each and every public officer who are exercising their powers through quasi judicial functioning vested with them in dealing with the departmental proceedings against the delinquent employee. Till suitable restrictions in exercise of such discretionary powers vested with the superior authority may not be enforced through the proper legislation or administrative instructions and punishment of warning . Adverse entry, censor and stoppage of the increment may not be imposed against the superior officers exercising his power by making an abuse of misuse of his discretionary power, may not be imposed in the case of failure to discharge such obligation, when the Hon’ble Court or the administration found the lapses and dereliction of the duties on their part , the justice cannot be given to the delinquent ,simultaneously for frivolous litigation should also dealt with exemplary cost against the fraudulent litigants as fraud and justice never dwell together and fraud and deceit defend or excuse no man .The Hon’ble Supreme Court in the cases of S.P.Changalvaraya Naidu (dead) by L.R Vs Jagan Nath (dead) by L.R repoted in A.I.R 1994 S.C 853 ,inre, Indian Bank Vs M/s Satyam Fibres J.T 1996 (7)S.C. 265 and in the case of Municipal Corp. of Delhi Vs Kamla Devi A.I.R 1996 S.C page 1733 has dealt with this aspect and found such proceedings by way of sharp practice , which are designed to abuse process of law and impose exemplary cost against the litigants . It its the need of the time the very public office should have its accountability in respect of discharging its legal obligations and for that purpose , there should be the appointments of the officers and the legal experts instead of leaving the matter to the discretion of the administration only then the justice may be realised to the individuals from the courts of law. Mankind must either give themselves a law and regulate their life by it or live no better than to limit natural liberty of a particular man such a manner as they might not hurt anyone. A herd of wolves is quieter and more reasonable than the mob for one reason or other . According to Hindu Mythology , it is meant to regulate the human conduct amidst diversities of inclinations and desire so as to reconcile harmonically to the wishes of the individual wityh the interest of the community , while according to Mohhmadden law the purpose of the law is to promote welfare of he man , the improvement of morals by keeping the preservations of the life ,property and reputation. Its purpose is to encourage obedience by offer of reward and to discourage obedience by imposition of severe penalty . Thus the object of the law according to Hindu mythology in not to the punishment of the sins, but to prevent certain external results , while according to Mohammedan law , it is the obedience by offer of the reward and as such even the capital punishment is regarded appropriate in certain cases .
The importance of the justice is the wisdom of the law , as the law is without doubt a remedy for greater evils , yet it brings with it evils of its own . The object of the criminal justice may be referred from the angle of its implementation in the society . The deterrent aspect ofd the punishment is to protect society .According to Hindu Mythology penalty keeps then people under control , penalty protects them , penalty remains awake when people are asleep , so the vice have regarded the punishment as the source of righteousness. The preventive aspect concentrates on the prisoners to prevent them for offending again in future . The retributive theory is considered to allow the victim to take the revenge . Plato was the supporter of his theory to quote him ; " If justice is good the health of soul as in justice is its disease , chastisement is its own remedy" Judicial punishment are serve as a mean ---- good for the society . Everyone gets what is his due according to his deeds. The re-affirmative theory with the object to bring the moral reform of offender which unfortunately has been adopted as that of criminal justice has assume undue prominence on the other aspects of the criminal justice . This is the reason why the crime has now perpetuated in every sort of walk of life.
Let us examine the actual purpose of the legal institution in the context of providing justice to the individual . Society has now emerged with a complete deteriorated conditions of life. The existence of the individual citizen is on the stake in every walk of life . If we forgot the realities and start building the new structure on the basis of hypothetical presumptions ,we are bound to fail in administrative of justice . Now a day every proceedings based on the basis of evidence and what to say about the evidence when the very existence of the individual citizen is in itself deceptive. If we start adjudicating the cause on the basis of false evidence , the legal institution is bound to collapse . The custodian of the public interest are now playing the role of pirate . The robbery is committed with a licence by the Govt. servant . In such situation one should realise that it is only the accountability of the individual official in respect of his function , only then the society can survive . If we keep on having the expectations without rectification of the prevailing maladies , where the litigation are instituted with the falsehood and there is no accountability of the erring individual in such process by imposition of the proper punishment , justice can never be imparted from the court of law .There happens some shock thrilling experience in day to day life as that of every individual happens to think over the present set-up of the parliamentarian democracy in the context of the law enforceable agencies , who have become the pathetic observer of the surrounding over them . The day light robbery is committed of the passengers travelling inside the bus and when they proceed in the direction to lodge the report in the competent Police Station then the robber again enter and return back the looted articles under the protest that the valuable are of the lesser value then they ought to provide to the concern Police Officer as to get exoneration from the punishment . If the miscreant are threatened with the toy automatic Rifles and per chance the threatening is succeeded then next repercussion happens by the unwarranted query from the police officer regarding the factum of unauthorised weapon in the custody of the house keeper and thereafter on relieving the substance of the truth in respect of false threatening given by him , the police department from the scene and miscreants again comes and kill the house keeper , who is the informer ?If the execution of the crime is on the behest of the police then how the society may be protected and what the legal institution will help to solve the basic problem . Thus it is only the deterrent theory of punishment , which can provide protection to the society.
"I am unjust , but I can strive for justice ,
My life’s unkind ,but I can vote for kindness.
I, the un-loving, say life should be lovely,
I, that am blind , cry against my blindness
Justice is the end of government just to enjoy the peace of mind. Law is a means to an end. The essence of law is duty. It is a result of constraint struggle; an struggle of conflict with a view to attain peace and order. Law is the guaranty of condition of life in society assured by the state‘s power constrain. Thus the legal institution may provide the stability in the political sphere ,if we start thinking in the process of rectification of the present problem enunciated by theoretical approach and by the correct analysis of the sociological jurisprudence to promote sociological study in connection with the legal study is the fundamental right for preparation of legislation , which may improve by intelligent effort discovering the best means of furthering and directing such efforts . Thus it is very essential to learn the basic principle of jurisprudence and adopt a positive approach for imparting the justice to the individual litigant in the society.
Jurisprudence means systematic knowledge of the law .It is known as science of law Thus the jurisprudence may be considered to be systematic arrangement of the principle of the law the principle of the law, the principle duly recognised or enforced by the public and legal institution in the administration of the justice .The general rule of external human action enforced the sovereign political authority in the common law . Jurisprudence is concerned with fundamental conception , the sovereignty does not reside in the legislatures or executives ,but in the total aggregate of persons , who are members of state and are primarily represented by the existing body of electors. The instrumentality of sovereign is endowed with powers to be exerted with on behalf of the legislature cannot invoke the sovereign power of the people to override their will . Thus the sovereignty is vested in the people and not with the government to exercise their sovereign powers . If the government ignores the protection of social interests of the people then it has no authority to discharge its sovereign powers. Thus one has to find that the sovereign power is exercising its functioning in the ultimate interest of the people , which may attribute sovereignty to that entity .
Jurisprudence is the eye of law. It is innovation of the legal invention for protection of Human behaviour, which maintain intense relationship for advancement of mankind . Thus the jurisprudence is the wisdom of law , which is the ultimate purpose in pursuit of the advancement of Human conduct , If we are not aware with the realities of the life and the problems of the society , we may not be discharging the duties of sovereignty . The legal institution may not serve its purpose if other considerations have the over riding effect and there after the habitual obedience from bulk of human society will completely be vanished . Thus there should be the attempt to change the law within a reasonable living stream , but it may not become stagnant pool of conflicting precedents. If the subject of the law is the science of the man to the political ethics , the legislation may perfectly regard to discharge its duty in the strictest sense The science is not limited to the study of external conduct. Thus the first requirement of law is to correspond with the actual feeling and demand of community . The guardian of the law have made no serious efforts to curb the number of cases and they could not be worked out inspite several assurance of the Hon’ble Court.
The Hon’ble Supreme court in the S.P. Sampath Kumar Vs Union of India 1987 (1)SCC Page 124 , while dealing with the provision of section 28 of the Administrative Tribunal Act , 1965 , laid down that the exclusion of the High Court jurisdiction under the Article 226 and 227 of judicial review in service matters It was held by the five Hon’ble Judges of the Hon’ble Supreme Court concurring judgement that the said act would not be rendered unconstitutional .It was held that Article 323-A authorising exclusion of the jurisdiction must provide for an effective alternative institutional mechanism or authority for judicial review . The supreme Court has referred the decision of Minerva Mills Ltd. Vs Union of India A.I.R 1980 S.C Page 1789 wherein it was held that the judicial review is the basic and essential feature of the constitution and if the power of judicial review is abrogated or taken away the constitution will cease to be what it is. However it was held that if the power of the high court are curtailed from judicial review and it is vested in any other institutional mechanism or authority , it would not be violative of basic structure doctrine.
The central administrative tribunal was given the jurisdiction parallel to the jurisdiction vested under Article 226 and 227 of the High Court. By virtue of such power it was held in the case of union of India Vs Paramananda A.I.R 1989 S.C Page 1185 that " we must unequivocally state that the jurisdiction of the tribunal to interfere with the disciplinary matters for punishment cannot be equated with an appellate jurisdiction . The tribunal cannot interfere with the finding of the enquiry officer or competent authority , where there are no arbitrary or utterly perverse . It is appropriate to remember that the power to impose penalty on a delinquent officer , is conferred on competent authority either by Act of legislature or rules made under the provision of article 309 of the constitution . If there has been an enquiry consistent with the Rules and in accordance with the principles of natural justice , what punishment would meet the ends of justice is matter exclusively within the jurisdiction of the competent authority or the penalty can be lawfully imposed and is imposed on the proved misconduct , the tribunal have no power to substitute to his own discretion for that of the authority .This principle was consistently followed in Govt. of Tamilnadu Vs A Raza Pandian A.I.R 1995 S.C.Page 561 ,State of Tamilnadu Vs S . Subramanian A.I.R 1996 S.C Page 1232 and state of Tamilnadu Vs Thiru K.V Perurmal A.I.R1996 S.C page 2474 .
The supply of th ecopy of the enquiry report to the delinqent seeking his explanation against the proposed action was considered after the case of Union of India Vs Ramzan Khan J.T 1990 (4) S.C page 556 , in the case of Managing Director ECIL Hyderabad Vs B.Karunakar reported in J.T 1993 (6) S.C page 1 was considered that it is the right of the employee to have the report to defend himself effectively and he would not know in advance whether the report is in his favour or against him . It will not be proper to construe his failure to ask for the report ,as waiver of his right .However , this precedent remain valid upto the period when the supreme court in the case of S.K.Singh Vs Central Bank of India 1996 (6)S.C.C page 415 has laid down that the non supply of enquiry report is in consequential if no prejudice is caused. The Hon’ble Supreme court in the case of State Bank Patiala Vs S.K. Sharma reported in A.I.R 1996 S.C page no 1669 has laid down that an order passed imposing a punishment on an employee consequent upon the departmental enquiry ,while dealing with such case ,.The Hon’ble Court in case of a procedural provision mandatory in character if found to have waived or in such situation where the rule of Audi -Alteram partem has not been applied ,then the order of punishment cannot be set-aside on the ground of said violation until the test of prejudice may be called to the delinquent. Thus ultimately further curtailing the scope of judicial review as was being exercised by the central administrative tribunal was visualised during the course of arguments and in getting the judgement from the Tribunal to the delinquent Govt. Servant was visualised during this period .
The Hon’ble Supreme Court in the judgement reported in 1997(3) S.C.C page 261 L.Chandra Kumar Vs Union of India consisting of seven Hon’ble judges has now over ruled the earlier judgement of five Hon’ble Judges constitutional bench in Sampath Kumar case. It has been laid down on the basis on the basis of Keshavanand Bharti case decided by the power of judicial review vested in the High Court under the Article 226and 227 is part of the basic structure of the constitution . Judicial review comprises of three aspects ;Judicial review of legislative action , Judicial review of judicial decisions and judicial review of Administrative action tribunal is not a substitute for the high Court .Thus section 28 of the Administrative tribunal Act divesting the jurisdiction of of the High Court in relation to the service matter and article 323-A and 323-B of the constitution of this extent are unconstitutional . The Hon’ble Supreme court has laid down that until a whole independent agency for administration of all such Tribunals may not be set up and the entire system may not be languished and ultimate consumer of the justice under the supervision of the Administrative function may not be formulated by the Union of India .The system may carry on and the tribunal will continue to act like courts of first instance in respect of the areas of law which they have been constituted .Thus the tribunal on account of this judgement instead of exercising the power of judicial review as is being exercised by the High Court under Article 226 and 227 of the constitution of India is conferred with the jurisdiction of the court of first instance in respect of areas referred under sec 14 and 15 of Administrative tribunal Act , 1985
Now the question arises what is the significance of judicial accountability in respect of conflicting judgement of the Apex court which are meant to exercise the jurisdiction as that of the law of the nation. The first requirement of a sound body of law is that it should be correspond with the actual feeling and demand of the community. A law embodies beliefs that has triumphed in the battle of ideas and then translated themselves into action . The legal Institution of the knowledge of jurisprudence and the social requirement of imparting justice to the litigants requires that the exercise of the judicial precedents may not be top harror and unconscionable as it may loss site from the very basis for which the law is meant for we cannot confine ourselves to the formal legal; materials ,but we have to go beyond to find out now people actually live in the society . The centre of gravity of legal development lies not in legislative nor jurist’s science nor in judicial decision but in society itself . If we want the real law regulating the people , we have to become aware with the hardships suffered by the litigant people and for now the same is being is ignored as what is in actual practise governing the relations of the employer and employee , some limit has to be drawn because otherwise jurisprudence will dissipate its energy over too widen area .
The requirement of the society in the present political set-up is not mere formality , but it requires an accountability of each and every public officer who are exercising their powers through quasi judicial functioning vested with them in dealing with the departmental proceedings against the delinquent employee. Till suitable restrictions in exercise of such discretionary powers vested with the superior authority may not be enforced through the proper legislation or administrative instructions and punishment of warning . Adverse entry, censor and stoppage of the increment may not be imposed against the superior officers exercising his power by making an abuse of misuse of his discretionary power, may not be imposed in the case of failure to discharge such obligation, when the Hon’ble Court or the administration found the lapses and dereliction of the duties on their part , the justice cannot be given to the delinquent ,simultaneously for frivolous litigation should also dealt with exemplary cost against the fraudulent litigants as fraud and justice never dwell together and fraud and deceit defend or excuse no man .The Hon’ble Supreme Court in the cases of S.P.Changalvaraya Naidu (dead) by L.R Vs Jagan Nath (dead) by L.R repoted in A.I.R 1994 S.C 853 ,inre, Indian Bank Vs M/s Satyam Fibres J.T 1996 (7)S.C. 265 and in the case of Municipal Corp. of Delhi Vs Kamla Devi A.I.R 1996 S.C page 1733 has dealt with this aspect and found such proceedings by way of sharp practice , which are designed to abuse process of law and impose exemplary cost against the litigants . It its the need of the time the very public office should have its accountability in respect of discharging its legal obligations and for that purpose , there should be the appointments of the officers and the legal experts instead of leaving the matter to the discretion of the administration only then the justice may be realised to the individuals from the courts of law. Mankind must either give themselves a law and regulate their life by it or live no better than to limit natural liberty of a particular man such a manner as they might not hurt anyone. A herd of wolves is quieter and more reasonable than the mob for one reason or other . According to Hindu Mythology , it is meant to regulate the human conduct amidst diversities of inclinations and desire so as to reconcile harmonically to the wishes of the individual wityh the interest of the community , while according to Mohhmadden law the purpose of the law is to promote welfare of he man , the improvement of morals by keeping the preservations of the life ,property and reputation. Its purpose is to encourage obedience by offer of reward and to discourage obedience by imposition of severe penalty . Thus the object of the law according to Hindu mythology in not to the punishment of the sins, but to prevent certain external results , while according to Mohammedan law , it is the obedience by offer of the reward and as such even the capital punishment is regarded appropriate in certain cases .
The importance of the justice is the wisdom of the law , as the law is without doubt a remedy for greater evils , yet it brings with it evils of its own . The object of the criminal justice may be referred from the angle of its implementation in the society . The deterrent aspect ofd the punishment is to protect society .According to Hindu Mythology penalty keeps then people under control , penalty protects them , penalty remains awake when people are asleep , so the vice have regarded the punishment as the source of righteousness. The preventive aspect concentrates on the prisoners to prevent them for offending again in future . The retributive theory is considered to allow the victim to take the revenge . Plato was the supporter of his theory to quote him ; " If justice is good the health of soul as in justice is its disease , chastisement is its own remedy" Judicial punishment are serve as a mean ---- good for the society . Everyone gets what is his due according to his deeds. The re-affirmative theory with the object to bring the moral reform of offender which unfortunately has been adopted as that of criminal justice has assume undue prominence on the other aspects of the criminal justice . This is the reason why the crime has now perpetuated in every sort of walk of life.
Let us examine the actual purpose of the legal institution in the context of providing justice to the individual . Society has now emerged with a complete deteriorated conditions of life. The existence of the individual citizen is on the stake in every walk of life . If we forgot the realities and start building the new structure on the basis of hypothetical presumptions ,we are bound to fail in administrative of justice . Now a day every proceedings based on the basis of evidence and what to say about the evidence when the very existence of the individual citizen is in itself deceptive. If we start adjudicating the cause on the basis of false evidence , the legal institution is bound to collapse . The custodian of the public interest are now playing the role of pirate . The robbery is committed with a licence by the Govt. servant . In such situation one should realise that it is only the accountability of the individual official in respect of his function , only then the society can survive . If we keep on having the expectations without rectification of the prevailing maladies , where the litigation are instituted with the falsehood and there is no accountability of the erring individual in such process by imposition of the proper punishment , justice can never be imparted from the court of law .There happens some shock thrilling experience in day to day life as that of every individual happens to think over the present set-up of the parliamentarian democracy in the context of the law enforceable agencies , who have become the pathetic observer of the surrounding over them . The day light robbery is committed of the passengers travelling inside the bus and when they proceed in the direction to lodge the report in the competent Police Station then the robber again enter and return back the looted articles under the protest that the valuable are of the lesser value then they ought to provide to the concern Police Officer as to get exoneration from the punishment . If the miscreant are threatened with the toy automatic Rifles and per chance the threatening is succeeded then next repercussion happens by the unwarranted query from the police officer regarding the factum of unauthorised weapon in the custody of the house keeper and thereafter on relieving the substance of the truth in respect of false threatening given by him , the police department from the scene and miscreants again comes and kill the house keeper , who is the informer ?If the execution of the crime is on the behest of the police then how the society may be protected and what the legal institution will help to solve the basic problem . Thus it is only the deterrent theory of punishment , which can provide protection to the society.
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