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2010 DIGILAW 620 (KER)

Chief Secretary to Government v. Khalid Mundappilly

2010-08-13

C.N.RAMACHANDRAN NAIR, P.S.GOPINATLHA

body2010
ORDER : P.S. Gopinathan, J. This is a Petition filed by the State requesting one of us (C.N.R. (J)), to abstain from hearing the Review Petition. Reason stated in the affidavit accompanying the petition which is filed by the Addl. Secretary to Government, is that the Judge while making a public speech referring to the judgment under review, stated that Judges get police assistance to escape from traffic blocks and therefore the judgment was for the benefit of the public. Newspaper cutting reporting the speech of the Judge is produced along with I.A. to prove the same. Advocate Shri Sherry J. Thomas who got impleaded in the R.P. as an additional respondent has filed counter affidavit in this I.A. stating that he was one of the organisers of the meeting and he proposed Vote of Thanks in the meeting where the Judge concerned made the speech. He has stated that newspaper report is not the full version of the speech made by the Judge. According to him Advocate Mr. Mathew welcomed the Judge by making reference to the judgment impugned in the R.P. The Judge started his speech by saying "I do not propose to say anything about the judgment referred to by Mr. Mathew". The Judge is stated to have said that Judges get police assistance which ordinary people do not get. In the recusal petition, the State has no case that the Judge while making the speech stated anything about the judgment or it's merit, except to say that the judgment is for the public. In the first place, the speech was made on 18.07.2010 whereas the judgment was pronounced more than three weeks before that. Secondly, judgment was rendered in a public interest litigation wherein the Court is concerned only with public interest. Though the speech made by the Judge on the occasion of the release of a book written by a senior Bishop was widely published, the petitioners in the other five Review Petitions filed against the same judgment have no case that the Judge should refrain from hearing the Review Petitions because of the speech made by him. Though the speech made by the Judge on the occasion of the release of a book written by a senior Bishop was widely published, the petitioners in the other five Review Petitions filed against the same judgment have no case that the Judge should refrain from hearing the Review Petitions because of the speech made by him. Since it is an unusual petition filed in the name of the State, that too in a Review Petition questioning the impartiality of the senior-most Judge of this Court and having smelt rat, we called for the files and to our surprise we find that the Government has not authorised the Addl. Secretary to file a Petition of this nature. On the other hand, the file shows the routine procedure adopted by Government referring the judgment to the Law Department and it is on the advice of the Law Department that Review Petition is filed that too on two technical grounds, one violation of natural justice, and the other against granting of relief beyond what is sought for by the petitioner in the W.P.(C). We find that the filing of Recusal Petition is not under any authorisation by the Government or by the Chief Secretary. We are very much surprised to note from the file nothings that Review Petition was filed even without the Chief Minister approving it, but after we called for the file, it is seen circulated in haste and a post facto approval is obtained from the Chief Minister, that too without any reference to this Petition. Obviously the Addl. Secretary is made a tool to serve somebody's vested interest. Under Rules of Procedure, Review Petition has to be heard by the Judges, who pronounced the judgment, so long as they are in service. The limited scope of review is known to the State also inasmuch as petitioner can only seek correction of errors or mistakes in the judgment apparent on the face of the record. The hidden agenda in filing the recusal petition therefore is only an attempt to tarnish the image of the senior-most Judge of this Court and to take a chance before another Judge. The hidden agenda in filing the recusal petition therefore is only an attempt to tarnish the image of the senior-most Judge of this Court and to take a chance before another Judge. It would not be out of place to mention here that a senior leader of the political party which is leading the coalition Government in Kerala is facing contempt of Court proceedings in this Court for calling the Judges who wrote the judgment impugned in the R.P. as "fools" and against inciting the public to violate the judgment. Suffice to state that this Petition is filed not to protect the interest of the State or any public interest but with ulterior motives. 2. In one of the judgments of the Supreme Court, His Lordship, Justice Chinnappa Reddy said even when the Judge who wrote the judgment is on leave the Review against the same should not be posted before another Judge. Knowing very well that Review Petition has to be heard by the Judges who wrote the judgment, the legal Advisors of the State has got the recusal petition filed by an Addl. Secretary which cannot be termed anything other than as "forum shopping" usually adopted by cunning litigants and their lawyers by trying to terrorise and intimidate Judges to secure favourable orders which is condemned by the Supreme Court in Chetak Construction Company's case ( (1998) 4 SCC 577 ). 3. In the normal course we should dismiss this petition with heavy costs to the person who filed the affidavit. However, we do not do this because we find that the Additional Secretary is used only as a tool by certain vested interests tracing whose identity is not our concern. If Government is interested, it is upto them to identify as to who, without authority from the Government, let the Government stoop to the level of a third rate litigant by filing this application before this Court. We therefore dismiss this Petition with the contempt it deserves. Petition dismissed.