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2013 DIGILAW 3016 (ALL)

OM PRAKASH DWIVEDI v. STATE OF U. P.

2013-12-12

D.Y.CHANDRACHUD, SANJAY MISRA

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JUDGMENT By the Court.—This special appeal has been filed by the eighth respondent, who is the officiating Joint Director of Education, Varanasi Region, Varanasi against an order of the learned Single Judge dated 25 November 2013 which reads as follows : “After hearing Sri R.B. Pradhan, learned Additional Chief Standing Counsel, this Court is satisfied that there has been an attempt on the part of the then Regional Joint Director of Education to over reach the directions issued by this Court vide judgment dated 22nd October, 1997 passed in Civil Misc. Writ Petition No. 28384 of 1993 (Committee of Management, Gangadin Ram Km. Intermediate College, Ramgarh, Jaunpur and others v. Sri Amit Prakash, Deputy Director of Education, Vth Region, Varanasi and others alongwith connected petition), and to bring disrepute to the final judgment, which has been made in the matter. Therefore, the then Regional Joint Director of Education, Sri O.P. Dwivedi is prima facie liable for contempt and for the purposes of framing of charge his presence is required. Let the then Regional Joint Director of Education, Sri O.P. Dwivedi appear before this Court on 18th December, 2013. List this matter on 18th December, 2013.” 2. The writ petition under Article 226 of the Constitution has been filed by the twelfth and thirteenth respondents to this appeal, who are respectively the Committee of Management, Ganga Din Ram Kumar Inter College, Ramgarh Barawan, Jaunpur and Virendra Kumar Pandey, its Manager. The petition seeks a writ of certiorari calling for the records of an alleged election held on 23 October 2011 and for quashing and setting aside the election and an order of the District Inspector of Schools, Jaunpur dated 29 October 2011, attesting the signature of Smt. Vimla Tripathi (respondent 11 in the writ proceedings and respondent 10 in the present appeal). The petition was initially put up as a fresh matter before a learned Single Judge on 6 February 2012 and thereafter was adjourned from time to time until 15 March 2012 when the learned Single Judge (Justice A.P. Sahi) directed that the petition be placed before a Bench of which he is not a Member after obtaining a nomination from Hon’ble the Chief Justice. The Chief Justice, on 16 March 2012, directed that the petition should be placed before Hon’ble Mr. The Chief Justice, on 16 March 2012, directed that the petition should be placed before Hon’ble Mr. Justice Dilip Gupta before whom the petition appeared on board on 12 April 2012, 10 May 2012, 2 July 2012, 18 September 2012, 3 October 2012, 10 October 2012, 21 November 2012, 29 November, 2012, 22 March 2013 and 5 April 2013. Eventually on 5 April 2013, the learned Single Judge directed that since he was now sitting in a Division Bench, the matter may be placed before the Hon’ble the Chief Justice for appropriate orders. Accordingly, the Hon’ble the then Chief Justice issued a direction on 9 April 2013 to the effect that the petition may be laid/listed before the appropriate Bench. Accordingly, on 9 May 2013, the petition was listed before the learned Single Judge in accordance with the prevailing roster of work. On that day, the order sheet records that the petition was heard in part and on the request of the counsel for the eleventh respondent (in the writ proceedings) who sought an adjournment to study the matter, the petition was directed to be placed on 13 May 2013. On 20 May 2013, the petition appeared on board before the learned Single Judge. While referring to the fact that the petition had been heard “at length on 9 May 2013”, the learned Single Judge directed the petition to stand over to 29 May 2013 peremptorily. The petition was not heard on 29 May 2013. 3. The admitted position is that the assignments of work under the roster prepared under the directions of Hon’ble the Chief Justice changed after the summer recess of 2013. However, the same learned Single Judge, who had heard the matter on 9 May 2013 and 20 May 2013, heard the proceedings on 10 July 2013. For the first time, notice was issued on that date when the learned Standing Counsel representing respondents 1 to 7 and the counsel representing respondents 11 and 12 accepted notice. The appellant, being an officer of the Education Department, the learned Standing Counsel was directed to take notice on his behalf. A further direction for listing the matter on 25 July 2013 was issued. Thereafter, the learned Single Judge heard the petition on diverse dates between 25 July 2013 and 10 October 2013. The appellant, being an officer of the Education Department, the learned Standing Counsel was directed to take notice on his behalf. A further direction for listing the matter on 25 July 2013 was issued. Thereafter, the learned Single Judge heard the petition on diverse dates between 25 July 2013 and 10 October 2013. Eventually, on 25 November 2013, an order was passed by the learned Single Judge observing that the Court was satisfied that there had been an attempt on the part of the then Regional Joint Director of Education to overreach the directions issued by this Court in a judgment dated 22 October 1997 and to bring disrepute to the final judgment. Consequently, the then Regional Joint Director of Education was prima facie held liable for contempt and his presence has been directed to be secured before the Court on 18 December 2013 for framing of charges. 4. Two submissions have been urged in support of the appeal. First, it has been submitted that under the directions of Hon’ble the then Chief Justice, the hearing of the petition was directed to be laid/listed before the appropriate Bench (by an administrative direction dated 9 April 2013). Accordingly, the petition came up before the learned Single Judge on 9 May and 20 May 2013. This was before the issuance of notice. Once the roster changed after the reassembling of the Court at the end of summer recess in July 2013, it has been urged that the learned Single Judge had no jurisdiction to further proceed with the hearing of the petition and, hence, the assumption of jurisdiction was improper and the order which has been passed on 25 November 2013 is a nullity. Second, it has been urged that even if the assumption of jurisdiction was correct and proper, the learned Single Judge had no jurisdiction to hold the Regional Joint Director of Education prima facie liable for contempt and to require his presence for framing of charges since the learned Judge was not assigned contempt matters. In this regard, reliance was placed on a Division Bench judgment of this Court in Prof. Y.C. Simhadri, Vice Chancellor, B.H.U. and others v. Deen Bandhu Pathak, Student, 2001 (4) AWC 2688 . 5. In this regard, reliance was placed on a Division Bench judgment of this Court in Prof. Y.C. Simhadri, Vice Chancellor, B.H.U. and others v. Deen Bandhu Pathak, Student, 2001 (4) AWC 2688 . 5. On the other hand, it has been urged on behalf of the respondents that (i) the learned Single Judge had heard the matter in part on 9 May 2013 and consequently was acting within jurisdiction in continuing to retain control over the matter despite the change in the roster. Once the petition was heard in part, the learned Single Judge was justified in entertaining the petition; (ii) under Section 15 of the Contempt of Courts Act, 1971, the Court has jurisdiction to take cognizance on its own motion of a case of criminal contempt. That Court necessarily has to be the Court in respect of whom a case of criminal contempt arises and hence the learned Single Judge before whose Court prima facie a criminal contempt had been found was entitled to exercise jurisdiction. 6. The rival submissions now fall for consideration. 7. In the present case, as the order sheet indicates, the first administrative assignment, after a learned Single Judge had recused himself, was issued on 16 March 2012 when there was a direction that the case would be laid/listed before Hon’ble Mr. Justice Dilip Gupta. When Hon’ble Mr. Justice Dilip Gupta observed in an order dated 5 April 2013 that he was unable to take up the matter since he was sitting in a Division Bench, the Hon’ble the then Chief Justice, by an administrative order on 9 April 2013, directed that the case would be laid/listed before the appropriate Bench. Clearly, therefore, the direction of Hon’ble the then Chief Justice was not to tie the case with a particular Judge eo nominee but the case would now be heard by the learned Single Judge who was presiding over the relevant assignment under the roster. It was in accord with the aforesaid administrative direction that the case came to be placed before the learned Single Judge on 9 May 2013 when it was heard in part. The case was thereafter directed to be placed on board on 13 May 2013 since the counsel for the eleventh respondent sought time to study the matter. The petition did not thereafter appear before the learned Single Judge on 13 May 2013. The case was thereafter directed to be placed on board on 13 May 2013 since the counsel for the eleventh respondent sought time to study the matter. The petition did not thereafter appear before the learned Single Judge on 13 May 2013. Again on 20 May 2013, it was passed over on the illness of one of the Advocates who was appearing for a contesting party and was directed to be listed on 29 May 2013. The term of the Court ended on account of the summer recess in June 2013. After the roster changed with the assembling of the Court after the summer recess, it was for the first time that by an order dated 10 July 2013, the learned Single Judge directed issuance of notices. Consequently, from the order sheet, it would be evident that prior to 10 July 2013, even notices had not been issued and, as a matter of fact, though the case had been heard on 9 May 2013, the counter-affidavits had yet not been filed. It was only on 10 July 2013 that the learned Single Judge granted time to the respondents to file their counter-affidavits within a period of two weeks. Obviously, there could be no substantial hearing of a case unless the defence in the form of a counter was placed on the record and which, upon the directions of the Court, could take place after 10 July 2013. Now, it is in this background of the facts which have emerged before the Court on the basis of the orders, that we have to deal with the submission in regard to the assumption of jurisdiction by the learned Single Judge. 8. Rule 14 (1) of Chapter V of the Allahabad High Court Rules, 1952 provides as follows : “14. Tied up cases.—(1) A case partly heard by a Bench shall ordinarily be laid before the same Bench for disposal. A case in which a Bench has merely directed notice to issue to the opposite party or passed an ex parte order shall not be deemed to be a case partly heard by such Bench.” Rule 7 of Chapter VI of the said Rules provides as follows : “7. A case in which a Bench has merely directed notice to issue to the opposite party or passed an ex parte order shall not be deemed to be a case partly heard by such Bench.” Rule 7 of Chapter VI of the said Rules provides as follows : “7. Part-heard cases.—A case, which remains part-heard at the end of the day shall, unless otherwise ordered by the Judge or Judges concerned, be taken up first after miscellaneous cases, if any, in the Cause List for the day on which such Judge or Judges next sit. Every part-heard case entered in the list may, unless the Bench orders otherwise, be proceeded with whether any Advocate appearing in the case is present or not: Provided that if any part-heard case cannot be heard for more than two months on account of the absence of any Judge or Judges constituting the Bench, the Chief Justice may order such part-heard case to be laid before any other Judge or Judges to be heard afresh.” 9. These Rules have been interpreted by a Full Bench of this Court in Sanjay Kumar Srivastava v. Acting Chief Justice and others, 1996 AWC 644. The Full Bench has emphasized that Rule 14 (1) makes it clear that a case does not become part-heard merely by passing an interim order or by issuance of a notice to the opposite party. Hence, the Full Bench held that a Bench which has merely passed an ex parte order or directed the notice to be issued locates it as a part-heard case or passes an order that it will come up before that Bench for further hearing or as a part-heard or as a tied-up case, the order would be in violation of the Rules of the Court and, therefore, a nullity. Such an order would be without jurisdiction and would not confer any jurisdiction on the Bench concerned to proceed with that case, unless it is listed before the Bench under the orders of the Chief Justice. The judgment of the Full Bench has been followed in a judgment of a Division Bench of this Court in Awadh Naresh Sharma v. State of U.P. and others, (2008) 1 UPLBEC 410, where the Division Bench held as follows : “14. The judgment of the Full Bench has been followed in a judgment of a Division Bench of this Court in Awadh Naresh Sharma v. State of U.P. and others, (2008) 1 UPLBEC 410, where the Division Bench held as follows : “14. Thus, the Full Bench of this Court has clearly laid down that if a Bench has issued only notice to the opposite party and passed an order that the matter will come up before that Bench for further hearing or as a part-heard or as a tied-up case, the order would be in violation of the Rules of Court and, therefore, a nullity. Such an order would be without jurisdiction and would not confer any jurisdiction on the Bench concerned to proceed with that case, unless the case is listed before that Bench under the orders of the Chief Justice. 15. In paragraphs 34 and 35 the Full Bench went into the question about the matters which are being heard finally and are part-heard. After referring Rule 14 of Chapter V of the Rules of the Court the Full Bench held in paragraph 34 that the provision of Sub-rule (1) would indicate that even a case which is partly heard by a Division Bench is not necessarily to be laid before that Bench. The use of word “ordinarily” itself indicates that there can be a departure from the normal practice of listing a part-heard case before the same Bench.” The Division Bench has finally concluded thus : “19. The law laid down in these judgments clearly established that the learned Single Judge could not have directed the Registry to continue the matter to be placed before him as the roster had been changed. Even if he was to say that the matter was part heard, in view of the law laid down by the Full Bench which is affirmed by the Apex Court: such a direction or order would be in violation of the Rules of Court and, therefore, nullity. Any case at pre-admission stage cannot be treated as part heard or tied up and such a direction contrary to the roster is not within the competence of any Single or Division Bench of the High Court as has also been held in the case of Jasbir Singh (supra).” 10. In this view of the matter, the law on the subject is settled beyond a shadow of doubt. In this view of the matter, the law on the subject is settled beyond a shadow of doubt. The Rules of this Court contemplate that even the issuance of a notice or the passing of an ex parte order does not ipso facto result in a case being treated as a case partly heard by a Bench. Consequently, if a Court issues a direction treating a petition as a part-heard or as a tied-up case merely because a notice has been issued or an ex parte order has been passed, such an order would be a nullity and without jurisdiction. The Rules of the Court have, in the present case, been crafted with care and for a purpose. It is necessary, in order to maintain judicial discipline and to promote transparency in the functioning of the Court, that a Judge of the Court should not even remotely give an impression of holding on to a case despite a change in the assignment. When the roster changes, cases which have not been disposed of by a particular Court, necessarily, must pass on to the regular Bench to which the new roster of work has been assigned by the orders of the Chief Justice. An excessive outflow of part-heard or tied-up cases disrupts the orderly functioning of the Court. Besides, it would promote a sense of confidence of the litigating public in the working of the Court if Judges were not to treat cases as part-heard or tied-up unless, in a given case, the matter has been heard extensively, in which case the administration of justice requires that the case should be heard and disposed of by the same Bench. This is always subject to the overarching administrative discretion of the Chief Justice. Before a case can be taken up as a part heard or tied up case after a change in the roster, the prior administrative directions of the Chief Justice must be obtained. It is also well-settled in view of the judgment of the Supreme Court in State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1, that the Chief Justice has the authority and jurisdiction to refer even a part-heard case to another Bench for its disposal in accordance with the regular roster of work. 11. It is also well-settled in view of the judgment of the Supreme Court in State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1, that the Chief Justice has the authority and jurisdiction to refer even a part-heard case to another Bench for its disposal in accordance with the regular roster of work. 11. In the present case, as is evident from the order sheet, notice was issued, for the first time, on 10 July 2013 by which time the roster of work had changed. Even the issuance of a notice, however, is not sufficient for a case to be treated as tied-up or part-heard. It is evident that the direction for filing of the counter-affidavit came to be issued on 10 July 2013. Consequently, there would be no occasion to treat the case as tied-up or part-heard by the time the roster of work had changed after the conclusion of the summer recess in the first week of July 2013. In this view of the matter, we find merit in the contention which has been urged on behalf of the appellant that the assumption of jurisdiction by the learned Single Judge and the impugned order dated 25 November 2013 must be regarded as a nullity. The learned Single Judge had, in our respectful view, no jurisdiction to hear the case on 25 November 2013. 12. In Prof. Y.C. Simhadri (supra), it has been held by the Division Bench that the contempt jurisdiction is an independent jurisdiction of an original nature whether emanating from the Contempt of Courts Act or under Article 215 of the Constitution of India. Consequently, it has been held that where the assumption of jurisdiction by the learned Single Judge is contrary to the Rules of the Court, the order would be appealable under Clause 10 of the Letters Patent as continued by Clause 15 of the United Provinces High Courts (Amalgamation) Order, 1948 and Rule 5 of Chapter VIII of the Allahabad High Court Rules, 1952. Such an order involving the exercise of jurisdiction not vested in the learned Single Judge has been held to fall within the definition of the expression ‘judgment’ since it decides a matter of moment or affects the vital and valuable rights of the parties, thereby working serious injustice as explained in the judgment of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania and another, AIR 1981 SC 1786 . 13. For all the aforesaid reasons, we allow this appeal and set aside the impugned judgment and order of the learned Single Judge dated 25 November 2013. In consequence, we direct that Writ - C No. 5825 of 2012 shall now be placed before the learned Single Judge in accordance with the roster of work. 14. We clarify that since we have held that the learned Single Judge had no jurisdiction to entertain the petition and to pass the impugned order dated 25 November 2013, it would not be necessary for us to express any view on the merits of the allegation of a breach of the judgment of this Court of 1997. 15. We also clarify that when the writ petition is placed before the learned Single Judge in pursuance of the present judgment and order, all the rights and contentions of the parties are kept open to be urged before and decided by the learned Single Judge on all issues which may arise for consideration. 16. The appeal is accordingly allowed. There shall be no order as to costs.