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2019 DIGILAW 668 (CAL)

Anindya Sundar Das v. Union of India

2019-06-25

ARINDAM MUKHERJEE, BISWANATH SOMADDER, SHAMPA SARKAR

body2019
JUDGMENT : Biswanath Somadder, J. 1. The instant writ petition is being moved as a Public Interest Litigation by one Anindya Sundar Das who claims to be, inter alia, a practising advocate of this Court championing various social issues over the years by filing numerous Public Interest Litigations, espousing the cause of various sufferers. 2. The issues sought to be raised in the instant writ petition centres primarily around the activities of Indian Jute Industries’ Research Association (hereinafter referred to as “IJIRA). According to the writ petitioner, an issue which concerns the general public at large is rampage misuse of powers by some of the officers and employees of IJIRA, being the respondent nos.7 to 13 herein. Allegations have been stated in details in the pleadings as contained in the writ petition and to avoid prolixity, we are not reproducing the same. 3. Allegations have been stated in details in the pleadings as contained in the writ petition and to avoid prolixity, we are not reproducing the same. 3. The prayers in the writ petition are set out here-in-below:- “(a) Issue a Writ in the nature of Mandamus commanding the respondents, their men, agents and assigns:- (i) To act in accordance with law; (ii) To conduct an enquiry into the affairs of the management of IJIRA and the acts committed by its officials as complained of in the representations dated 22nd September, 2009, 9th June, 2017 and 14th June, 2017 as contained in Annexures “P-1” and “P-7” herein; (iii) Conduct a special audit into the funds of IJIRA for the present as well as past years and ascertain whether they have been utilized by the officials of IJIRA in the manner and for the purpose for which they have been granted by the Ministry of Textiles; (iv) Take proper and appropriate steps against the officials, present or retired if found guilty of committing the offences complained of in the representations dated 22nd September, 2009, 9th June, 2017 and 14th June, 2017 as contained in Annexures “P-1” and “P-7” herein; (b) Issue a writ in the nature of Mandamus commanding the respondents their men, agents and assigns to forthwith cancel, withdraw and forebear from giving any effect or further effect to any decision of the Ministry of Textiles not to conduct any enquiry into the affairs and management of IJIRA and against its officials; (c) Issue a writ in the nature of Mandamus commanding the respondents their men, agents and assigns to consider and take proper and necessary steps and/or initiate proceedings on the basis of the representations dated 22nd September, 2009, 9th June, 2017 and 14th June, 2017 as contained in Annexures “P-1” and “P-7” herein; (d) Issue a Writ in the nature of Certiorari directing the respondents their men, agents and assigns to forthwith and/or immediately certify and/or transmit before this Hon’ble Court all records and documents forming subject matter of the financial and administrative illegalities and irregularities and action taken on the basis of complaints and issues raised over the years so that conscionable justice may therein be administered; (e) Issue a Writ in the nature of Prohibition prohibiting the respondents from any impugned decision arrived at by them not to conduct any enquiry into the affairs and management of IJIRA and against its officials on the basis of the representations dated 22nd September, 2009, 9th June, 2017 and 14th June, 2017 as contained in Annexures “P-1” and “P-7” herein;” 4. When the matter was initially taken up for consideration, the following order was passed on 18th January, 2019:- “Let the affidavit of service filed in Court today be taken on record. Despite service of notice, Union of India remains unrepresented. However, the Indian Jute Industries’ Association is represented through its counsel. Having heard the learned advocates for the parties and upon perusing the writ petition, this Court directs the Secretary, Ministry of Textile, Government of India, New Delhi, being the respondent no.2, to file a report in the form of an affidavit on or before the next date stating therein specifically as to whether the allegations made in the writ petition have any basis or not. List this matter a fortnight hence under the same heading for further consideration. The Indian Jute Industries’ Research Association, being the respondent no.4, is at liberty to file its affidavit-in-opposition to the writ petition in the meanwhile.” 5. Thereafter, on 1st February, 2019, when the matter was again taken up for consideration, the learned Additional Solicitor General appeared and submitted that a copy of the writ petition was not served upon the Secretary, Ministry of Textiles, Government of India, although the said authority had been made a party in the present writ proceeding and has been described as respondent no.2. As such, the Secretary had not been able to comply with the directions as contained in the order dated 18th January, 2019. In this context, he drew this Court’s attention to Rule 26 of the Rules of the High Court at Calcutta relating to applications under Article 226 of the Constitution. He submitted that a bare perusal of the said Rule would reveal that mere service upon the Standing Counsel for the Central Government shall be deemed to be additional service only and does not take away the obligation of the writ petitioner to serve notice together with a copy of the writ petition upon each and every authority of the Central Government who were likely to be bound and/or affected by any interim order to be passed by this Court in connection with the writ petition. 6. The Court found this question to be of some importance and permitted the learned Additional Solicitor General to address this issue on the next date. 7. 6. The Court found this question to be of some importance and permitted the learned Additional Solicitor General to address this issue on the next date. 7. On 15th February, 2019, after hearing the parties, the following order was passed:- “On the prayer of the learned Additional Solicitor General, this Court grants his client leave to file a fresh report in the form of an affidavit in terms of our order dated 18th January, 2019, which was earlier extended twice; first, on 1st February, 2019 and secondly, on 8th February, 2019. In view of a question of some importance – (and described morefully in our order dated 1st February, 2019) as sought to be raised by the learned Additional Solicitor General – we are of the view that this matter is required to be taken up for consideration by a Larger Bench. As such, we direct the Registry to place the file before the Acting Chief Justice (sitting in the administrative side) for necessary order. The matter may be listed next Friday (22.02.2019) under an appropriate heading.” 8. Thereafter, the matter was assigned before this Bench and was heard at length from time to time. In one of the orders passed, being order dated 6th March, 2019, this Court directed the office of the Principal Director of Commercial Audit & Ex-Officio Member, Audit Board-I, 1, Council House Street, Kolkata – 700001, to be added as a party to the proceeding. 9. During the course of hearing of the matter, the following pleadings have been filed on behalf of the parties:- 1. Affidavit-in-opposition of the respondent no.4, being Indian Jute Industries’ Research Association (IJIRA), affirmed on 31st January, 2019. 2. Report in the form of an affidavit filed by the Jute Commissioner, on behalf of the Secretary, Ministry of Textiles, being the respondent no.2, in compliance with the order dated 1st February, 2019 in WP 10085 (W) of 2018, affirmed on 18th February, 2019. 3. Affidavit-in-reply filed on behalf of the writ petitioner affirmed on 5th March, 2019. 4. Exception filed by the writ petitioner affirmed on 5th March, 2019, to the report filed by the Jute Commissioner. 5. Report in the form of an affidavit filed on behalf of the respondent no.14 as per the order of this Court dated 28th March, 2019, affirmed on 9th April, 2019. 6. 4. Exception filed by the writ petitioner affirmed on 5th March, 2019, to the report filed by the Jute Commissioner. 5. Report in the form of an affidavit filed on behalf of the respondent no.14 as per the order of this Court dated 28th March, 2019, affirmed on 9th April, 2019. 6. Exception filed by the writ petitioner affirmed on 25th June, 2019, to the report filed on behalf of the respondent no.14, being the Director General of Commercial Audit and Ex-Officio Member, Audit Board-I, Kolkata. 10. Before we proceed to address the issues sought to be raised in the writ petition, we deem it fit and proper to answer a question of some importance, as morefully described in our order dated 1st February, 2019, which was sought to be raised by the learned Additional Solicitor General with regard to service of notice together with a copy of the writ petition upon each and every authority of the Central Government who are likely to be bound and/or affected by any interim order to be passed by this Court in connection with the writ petition and not just service upon the Standing Counsel for the Central Government or for that matter, the Central Government Advocate. 11. In order to address this issue, we need to take note of the relevant rule governing service of notice and copies of the applications under Article 226 of the Constitution of India sought to be moved before this High Court. In this context, Rule 26 of the Rules of the High Court at Calcutta relating to applications under Article 226 of the Constitution of India is required to be noticed and is reproduced hereinbelow:- “26. Save and except as provided in these rules, all applications for a Rule Nisi shall be made in the first instance before the Court on such day or days and at such time or times as may be fixed by the Court. Save and except as provided in these rules, all applications for a Rule Nisi shall be made in the first instance before the Court on such day or days and at such time or times as may be fixed by the Court. An application under Article 226 shall not be moved and no prayer for interim order shall be entertained in a writ petition under Article 226 of the Constitution without serving copy of such petition alongwith all annexures upon the respondents to be bound by or affected by such interim order and without giving such party a reasonable opportunity to contest the same, without serving 48 hours’ prior notice alongwith a copy of the application under Article 226 of the Constitution, proposed to be moved, on the concerned respondent. Provided where the State Government is a party, service on the Legal Remembrancer/Government Pleader, as appropriate, will be sufficient; where the Central Government/Local Authority/ Body/Corporation or any of its officers is a party service may also be made on the Standing Counsel for the Central Government/Local Authority or Body or Corporation notified to the Registrar in this behalf : Provided that the Court may for reasons recorded allow the moving of the application and entertain the prayer for such interim order without such notice, in which case, a copy of the application alongwith all annexures in support thereof, shall forthwith be served by the petitioner, upon the respondents against whom the interim order has been obtained: Provided further that an affidavit of service shall be filed showing compliance with these rules before the matter is taken up for hearing. The Court hearing such an application may issue a Rule Nisi or summarily reject the application or issue notice or give direction/directions or make such order thereon as it thinks fit. A Judge, for the reasons recorded, at the hearing or at any subsequent stage of the proceeding may make it returnable before a Division Bench or may while hearing the Rule, refer the same to the Division Bench for hearing. Explanation. –– The Judge hearing such application may dispose of the same by issuing notice and without issuing formal Rule.” 12. Explanation. –– The Judge hearing such application may dispose of the same by issuing notice and without issuing formal Rule.” 12. Even a bare reading of the above rule leaves no manner of doubt whatsoever that without service of a copy of a writ petition along with all annexures upon the respondents to be bound or affected by an interim order and without giving such party/parties a reasonable opportunity to contest the same – by serving a clear 48 working hours prior notice – an application under Article 226 of the Constitution cannot be moved and no prayer for interim order can be entertained by this Court in connection thereto. In our view, it is clear from the said rule that when the State Government or the Central Government/Local Authority/Body/ Corporation or any of its officers is a party in a writ petition, service upon the Legal Remembrancer/Government Pleader (in case of the State Government) or service upon the Standing Counsel for the Central Government/Local Authority or Body or Corporation (in case of the Central Government/Local Authority or Body or Corporation or any of its officers), shall be deemed to be additional service only and does not take away the obligation of the writ petitioner to serve notice together with a copy of the instant writ petition upon each and every respondent; be it an authority or an officer of the State or that of the Central Government, who are likely to be bound and/or affected by any interim order to be passed by the Court in connection with that writ petition. This becomes absolutely clear when one takes into consideration – by way of an illustration – a writ petition filed against Union of India, wherein apart from Union of India, its officers and/or other authorities are made parties against whom interim orders are sought for. In that event, service upon the Central Government Standing Counsel or for that matter, the Central Government Advocate in the Ministry of Law and Justice, Department of Legal Affairs, shall be deemed to be additional service only and not sufficient service in respect of the authorities and/or officers of the Union of India who are impleaded as separate parties in a writ petition and against whom interim orders are sought for. 13. 13. This very issue came up for consideration before a Single Bench of this Court in Ajit Kumar Sinha vs. The State of West Bengal & Ors. reported in 2010 (2) CLJ (Cal) 604 where the Court took into consideration an earlier Division Bench judgment of this Court rendered in the case of State of West Bengal & Ors. vs. Arjun Kumar Izaddar & Ors. reported in 2005 (3) CHN 603 and a Single Bench judgment rendered in the case of Chandraprabhu International Ltd. vs. Commissioner of Customs, Kolkata & Ors. reported in 2001 (2) Cal LJ 360. While referring to and relying upon the two earlier judgments – the Court – in Ajit Kumar Sinha held, inter alia, to the effect that it was clear from a plain reading of Rule 26 that when the State Government or the Central Government/Local Authority/Body/Corporation or any of its officers was made a party in the writ petition, service upon the Legal Remembrancer/Government Pleader (in case of the State Government) or service upon the Standing Counsel for the Central Government (in case of the Central Government/Local Authority or Body or Corporation or any of its officers), shall be deemed to be additional service only and does not take away the obligation of the writ petitioner to serve notice together with a copy of the writ petition upon each and every respondent – be it an authority or an officer of the State Government or that of the Central Government – who are likely to be bound and/or affected by any interim order to be passed by this Court in connection with that writ petition. 14. We must, at this stage, take note of the fact that an appeal was preferred against the judgment of the Single Bench rendered in Ajit Kumar Sinha’s case (supra) before a Division Bench of this Court. 14. We must, at this stage, take note of the fact that an appeal was preferred against the judgment of the Single Bench rendered in Ajit Kumar Sinha’s case (supra) before a Division Bench of this Court. The Division Bench, in its judgment rendered in the case of Ajit Kumar Sinha vs. State of West Bengal reported in 2010 (2) CHN (Cal) 308 : (2010) 1 CLJ 852, was pleased to modify the order passed by the Single Bench while observing, inter alia, that the State Government cannot be separated from its officers and/or authorities and under normal circumstances, the Government Pleader attached to the High Court or the State Government Advocate authorised by the learned Government Pleader will have the authority to represent not only the State but also its officers and/or authorities until and unless specific instruction is given by the concerned officers/authorities to the learned Government Pleader for not representing them in any proceeding in the High Court. Therefore, service of notice upon the Government Pleader attached to the High Court will dispense with the requirements of service upon the respondent officers/authorities of the State Government unless the learned Government Pleader refuses to represent them in a particular case before the High Court upon receiving specific instruction. 15. Although the Division Bench made the above observation in the factual backdrop of service upon the Government Pleader in a matter relating to State of West Bengal and its authorities and cannot have any manner of application at all in respect of the ratio of the decision rendered by the Single Bench in Ajit Kumar Sinha’s case (supra) so far as it relates to service upon the Central Government/Local Authority or Body or Corporation or any of its officers, we are of the view that the judgment rendered by the Division Bench in appeal preferred by Ajit Kumar Sinha – even to the extent it relates to the State Government or its officers – cannot be held to be the correct position in law in view of the plain language of Rule 26, as discussed earlier. In other words, the decision of the Division Bench of this Court in the case of Ajit Kumar Sinha vs. State of West Bengal reported in 2010 (2) CHN (Cal) 308 = (2010) 1 CLJ 852 cannot be held to be good law even with regard to issue of service of notice upon the Government Pleader of the State attached to the High Court and whether such service dispenses with the requirement of service upon the respondents/officers of the State Government is concerned. We are of the view that service upon the Government Pleader of the State attached to the High Court does not take away the obligation of the writ petitioner – who moves an application under Article 226 of the Constitution of India – to serve upon the authorities or officers of the State who are likely to be bound and/or affected by any order likely to be passed by the Court in connection with that writ petition. Similar analogy will apply in case of Central Government and service upon the Standing Counsel for the Central Government or for that matter, the Central Government Advocate, shall be deemed to be additional service only where the Union of India and its authorities and/or officers are parties in a writ petition and does not take away the obligation of the writ petitioner to serve notice together with a copy of the writ petition upon each and every respondent of the Central Government who are likely to be bound and/or affected by any interim order to be passed by the writ Court in connection with that writ petition. 16. We must also take note of another important aspect in the judgment and order passed by the Division Bench in Ajit Kumar Sinha’s case. The judgment and order passed by the First Court in Ajit Kumar Sinha took notice and relied upon an earlier Division Bench judgment which was rendered in the case of State of West Bengal & Ors. vs. Arjun Kumar Izaddar & Ors. reported in 2005 (3) CHN 603 . The Division Bench in Ajit Kumar Sinha, even while noticing the earlier Division Bench judgment in Arjun Kumar Izaddar’s case, sought to distinguish the same by observing to the effect that representation of the State Government Department by the Government Pleader attached to the High Court was neither argued nor considered. reported in 2005 (3) CHN 603 . The Division Bench in Ajit Kumar Sinha, even while noticing the earlier Division Bench judgment in Arjun Kumar Izaddar’s case, sought to distinguish the same by observing to the effect that representation of the State Government Department by the Government Pleader attached to the High Court was neither argued nor considered. With respect to the Division Bench rendering its judgment in Ajit Kumar Sinha’s case, it perhaps overlooked the following observation made by the earlier Division Bench in Arjun Kumar Izaddar’s case:- “… It is true that our High Court Rules do directed service of a copy of the writ petition intended to be moved against the State to be served upon the Government Pleader attached to the High Court but such service does not dispense with service of the copy of the writ petition as well as the notice of moving the same upon the other respondents and an order passed only on service of copy of the writ petition upon the Government Pleader should therefore, be deemed to be an order made without notice to the respondents.” 17. As such, the very issue with regard to representation of the concerned State Department by the Government Pleader attached to the High Court without effecting service upon the concerned State department was specifically considered by the earlier Division Bench in Arjun Kumar Izaddar’s case. 18. In the scenario presented before the Division Bench in Ajit Kumar Sinha’s case, it had four options before it:- 1. Follow the ratio of the earlier judgment rendered by a coordinate Bench; 2. Distinguish the earlier judgment “on facts” by giving cogent reasons; 3. Record reasons as to why it disagreed with the views expressed by a coordinate Bench in the earlier judgment and thereafter send the matter to the Hon’ble Chief Justice for constitution of a larger Bench to decide the issue; 4. Distinguish the earlier judgment “on facts” by giving cogent reasons; 3. Record reasons as to why it disagreed with the views expressed by a coordinate Bench in the earlier judgment and thereafter send the matter to the Hon’ble Chief Justice for constitution of a larger Bench to decide the issue; 4. Refer to and rely upon any judgment rendered by a Bench of superior strength or of the Supreme Court specifically on the point of law decided by the coordinate Bench in its earlier judgment – which was neither referred to or relied upon in the earlier judgment rendered by the coordinate Bench – and thereafter observe, with reasons, that since the earlier coordinate Bench judgment did not take notice of the judgment rendered by a superior Bench or by the Supreme Court on the same point of law involved, the earlier judgment of the coordinate Bench was perincuriam on nature. (See Kolkata Municipal Corporation & Ors. vs. Balkrishna Shroff reported in AIR 2016 Cal 367 ). 19. As observed earlier, since the very issue with regard to representation of the concerned State Department by the Government Pleader attached to the High Court without effecting service upon the concerned State department was specifically considered by the earlier Division Bench while rendering its judgment in Arjun Kumar Izaddar’s case, it was incumbent upon the Division Bench – while rendering its decision in Ajit Kumar Sinha – to exercise the first option as stated above, instead of observing to the effect that in the earlier judgment, representation of the State Government Department by the Government Pleader attached to the High Court was neither argued nor considered. 20. Now coming back to the merits of the instant case, we do not find the issue with regard to the allegation against Tania Adhya regarding her date of birth as a matter of any public interest in view of the clear stand taken by the Director of IJIRA as contained in his letter dated 1st September, 2017, addressed to the Assistant Director (Tech.), office of the Jute Commissioner, Sector–I, Salt Lake City, Kolkata, which is a part of the pleadings filed before this Court in connection with the instant matter. 21. 21. However, so far as the other allegations are concerned – without going into a detailed analysis of the same – we leave it open to the Secretary, Ministry of Textiles, Government of India, to consider whether such allegations have any basis or substance and, if so, take appropriate remedial measures for course correction. For the said purpose, it will be open to the Secretary to delegate authority to any competent officer not below the rank of a Joint Secretary working under the Ministry of Textiles and one who is not directly involved with IJIRA. 22. The writ petition stands disposed of accordingly. 23. Urgent photostat certified copy of this judgment, if applied for, be given to the parties.