HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 9 Case :- WRIT - A No. - 35799 of 2011 Petitioner :- Ziledar Singh Respondent :- State Of U.P. And Others Counsel for Petitioner :- D.S.M.Tripathi,Rajeev Mishra Counsel for Respondent :- C.S.C.,R.Mishra Hon'ble Arun Tandon,J.
Records of earlier Writ Petition No. 18379 of 1993 have not been sent by the office.
Let the records be summoned immediately.
Heard Sri D.S.M. Tripathi, learned counsel for the petitioner, who is present in the Court today.
The records of the present writ petition along with the connected Writ Petition No. 183839 of 1993 reflect the manner in which an Advocate of this Court has conducted himself and how the profession of Lawyers has been degraded by adopting sharp practices.
Writ Petition No. 18379 of 1993 was filed by Ziledar Singh with the following relief :
"(a) Issue a writ, order or direction in the nature of certiorari, quashing the order dated 19.5.1993 (contained in Anneuxre-5 to this writ petition) passed by respondent no.2.
(b) Issue a writ, order or direction in the nature of mandamus directing the respondents not to interfere in the discharge of duties by the petitioner as Assistant Teacher.
(c) Issue a writ, rule, order or direction in the nature of mandamus directing the respondents to pay the salary of the petitioner along with arrears and also go on paying his future salary regularly as and when it falls due.
(d) Issue any suitable writ, rule, order or direction as this Hon'ble Court may deem fit and proper.
(e) Award costs of the petition to the petitioner."
In the petition, Ziledar Singh was granted an interim order because of which he continued in the institution for years. The writ petition came up for hearing before the High Court in the month of November, 2010.
Sri D.S.M.Tripathi, counsel for Ziledar Singh made a statement that the writ petition has become infructuous by efflux of time and it be dismissed. The High Court vide order dated 1.11.2010, dismissed the writ petition.
Since Ziledar Singh was continuing only because of an interim order of the Court, his working was interfered with, and an order for recovery of salary paid was also issued. Ziledar Singh, therefore, filed Application No. 15938 of 2011, through Sri D.S.M.Tripathi, Advocate for recall of the order dated 1.11.2010. This application was rejected by Hon'ble Single Judge after noticing that the legality or validity of the order of termination under challenge in the writ petition will not depend upon any subsequent event, which may have taken place because of the interim order of the High Court, and no right could be conferred upon the petitioner because of such continuance. Sri D.S.M.Tripathi again made a statement that the recall application may be dismissed. Accordingly, the recall application was rejected by the Hon'ble Single Judge vide order dated 13.5.2011, which reads as follows :
"Sri D.S.M.Tripathi, learned counsel for the petitioner after some argument when was pointed out that in case the earlier order is to be recalled then this Court has to examine whether the order of termination, impugned in the writ petition is valid or not since any subsequent event pursuant to interim order dated 24th May, 1993 on the basis whereof the petitioner has continued in service would not confer any right, he stated that he does not want to press this application for recall of the order dated 01.11.2010.
The application is accordingly rejected."
It may be noticed that in the order dated 13.5.2011, presence of Sri D.S.M.Tripathi, Advocate has specifically been noted. Therefore, not only Sri D.S.M.Tripathi, Advocate was aware that the recall application had been filed it had also been rejected. He was also aware of the fact that the High court was of the opinion that mere continuance under the interim order of the High Court in a pending petition will not confer any right upon the petitioner.
Sri D.S.M.Tripathi was however, very wise, he, therefore, drafted another petition on behalf of Ziledar Singh being Writ Petition No. 35799 of 2011. The affidavit of the writ petition was sworn on 3rd June, 2011 i.e. just after 20 days of the order of the High Court dated 13.5.2011.
In this second writ petition, following reliefs were prayed for :
"(i) issue a writ, order or direction in the nature of certiorari, quashing the impugned orders dated 18.12.2010 and 6.1.2011 passed by the District Inspector of Schools, Jaunpur (Anneuxre-5 and 6 respectively to this writ petition).
(ii) issue a writ, order or direction in the nature of mandamus commanding the respondents to pay salary to the petitioner with arrears as and when it falls due.
(iii) issue a writ, order or direction in the nature of mandamus commanding the respondents not to interfere in the functioning of petitioner as L.T. grade teacher of the institution.
(iv) issue any other suitable writ, order or direction in favour of petitioner to which this Hon'ble Court may deem fit and proper in the circumstances of this case.
(v) award the cost of this writ petition in favour of the petitioner."
In paragraph-11 of the second petition, reference was made to the Writ Petition No. 18379 of 1993 and to the fact that the writ petition was got dismissed as infructuous because of the regularization of the services of the petitioner under Section 33(c) of U.P. Act No. 5 of 1982 (reference paragraph-13 of the petition). It was specifically contended in paragraph-16 that the District Inspector of Schools, while issuing the impugned order has failed to take into consideration that the services of the petitioner stand regularized and, therefore, the dismissal of the writ petition as infructuous will have no effect on the regularization and working of the petitioner.
It is worthwhile to note the averments made in paragraph-17 of this writ petition, which reads as follows :
"That it is further stated that the order of dismissal fo the writ petition as infructuous was not communicated to the petitioner earlier, as such the petitioner was not aware with the said order and was not communicated to the District Inspector of Schools, Jaunpur from that it cannot be infer that the the petitioner has concealed any material fact and had illegality."
From reading of the said paragraph, it is clear that an impression was given to the Writ Court that the petitioner was unaware of the order dismissing the writ petition as infructuous and, therefore, the said order was not communicated to the District Inspector of Schools. This statement of fact made in paragraph-17 is false and in as much as a recall application was filed by the petitioner through the same counsel being recall application no. 15938 of 2011, which had been dismissed by means of a reasoned order on 13.5.2011 itself. It is, therefore, clear from the record that the counsel and the petitioner have tried to mislead this Court by deliberately concealing following facts:
(a) Filing of Recall Application No. 15938 of 2011 in Writ Petition No. 18379 of 1993 by the petitioner through the same counsel, Sri D.S.M.Tripathi.
(b) The application having been dismissed after recording reasons in the presence of the cousnel Sri D.S.M.Tripathi.
But the story does not end here. When this petition came up for consideration before the High Court on 7.7.2011 as a fresh matter, the counsel for the petitioner after arguing the matter at some length, made a statement that the writ petition be dismissed with liberty to the petitioner to make an appropriate application in Writ Petition No. 18379 of 1993, which had been got dismissed as infructuous. Believing the statement of the counsel for the petitioner, who was none other than Sri D.S.M.Tripathi, this Court granted the liberty prayed for and dismissed the petition vide order dated 7.7.2011, which reads as follows:
"After the matter argued at some length learned counsel for the petitioner submits that the present writ petition be dismissed with liberty to the petitioner to make an appropriate application in Writ Petition No. 18389 of 1993 which he got dismissed as infructuous on 1.11.2010.
Writ petition is dismissed with liberty as prayed for."
It is, therefore, clear on the record that Sri D.S.M.Tripathi made an attempt to mislead the Court on 7.7.2011 again. When he obtained the liberty to file an application in Writ Petition No. 18379 of 1993, when as a matter of fact, a recall application had already been filed and had already been dismissed by the concerned Court as detailed above.
Even thereafter Sri D.S.M.Tripathi and his client continued with their attempt to abuse process of Court. The client after engaging another counsel along with Sri D.S.M.Tripathi filed a recall application before this Court dated 27.9.2011 along with Section 5 application bearing Applications No. 300300 of 2011 and 300299 of 2011 respectively. These applications were dismissed for want of prosecution on 28.3.2014. In Recall Application No. 300300 of 2011 it has been stated that the petitioner was at the end of his wits and therefore could not decide as to what course of action he should take after his recall application had already been dismissed on 13.5.2011 and on contacting the new counsel and Sri D.S.M.Tripathi, he was not advised to file a fresh recall application.
On noticing the facts as detailed above, this Court issued notice to the counsel Sri D.S.M.Tripathi to show cause as to why proceedings be not initiated against him for concealment of facts and for making false statements before this Court and as to why the matter may not be referred to the Bar Council of Uttar Pradesh for appropriate disciplinary action against him.
Sri D.S.M.Tripathi submitted an explanation by means of an affidavit along with the application dated 3.7.2013. In paragraph-4 it has been stated that he was unwell since last week of June, 2011 and that on 16th of July he was admitted in Medical College at Allahabad. For the first time. In paragraph-6, a statement has been made that on 7th July, 2011 because of ailment, he did not attend the Court and his junior colleague Sri A.M.Tripathi holding brief of his behalf had argued the matter. It is then stated that the statement, which has been recorded on 7.7.2011 was made due to inadvertence by Sri A.M.Tripathi, Advocate. However, it is stated that the deponent has own responsibility of the statement made by his junior colleague Sri A.M.Tripathi. The explanation furnished in the shape of affidavit, is completely silent about non disclosure of filing of the recall application and its dismissal in earlier Writ Petition No. 18379 of 1993.
This Court, therefore, afforded more opportunity to Sri D.S.M.Tripathi to explain his conduct vide order dated 6.2.2015. An explanation has been filed by Sri D.S.N.Tripathi on 18.2.2015. The only explanation furnished is that due to inadvertence / mistake he could not give the complete details and the situation has not changed with the rejection of the recall application in respect of Writ Petition No. 35799 of 2011 as it had already been dismissed, which fact was disclosed in the writ petition.
The stands taken is an eye wash in as much as the recall application in Writ Petition No.18379 of 1993 was not dismissed simplicitor it was dismissed after noticing that Sri D.S.N.Tripathi had been informed that the continuance of the petition under the interim order will not alter or effect the legality of the order of termination and Sri Tripathi was well aware of this fact as is clear from the order of the Court itself, but still he choses to file the present writ petition after concealing the order passed on recall application and tried to take a stand contending that what was noticed in the said order with respect to the effect of the dismissal of the writ petition as infructuous.
In my opinion, Sri D.S.M.Tripathi has conducted himself in a manner unbecoming of an Advocate of this Court. No Advocate can be permitted to have the liberty of concealing the orders, which are passed in his presence, and have material being on the merits of the petition, which is subsequently filed. Such facts within the knowledge of the Advocate concerned appearing for the same petitioner practically for same relief must necessarily be disclosed in subsequent proceedings so as to maintain the purity of the legal system.
Writ petitions are normally decided on the basis of the affidavits filed. Facts stated must be true and complete in all respect. Neither the petitioner nor the counsel have a right to conceal material facts and try to obtain orders from the High Court with the help of such concealment. The material facts concealed in the present writ petition arise in the knowledge of Sri D.S.M. Tripathi. The only explanation furnished is that it was an inadvertent mistake. Sri D.S.M. Tripathi, Advocate had obtained an order from this Court on 7.7.2011 to file an application in the earlier writ petition, when such recall application had already been filed and had been dismissed two months earlier in the presence of the counsel.
The Apex Court in the case of Kripal Singh & Ors. Vs. State of U.P. & Ors. AIR 1954 SC 706 and Hansraj Singh & Ors. Vs. State of U.P.& Ors. has held that deliberate concealment of material facts effects the free flow of the stream of justice and, therefore, criminal contempt.
In view of the aforesaid, I have no hesitation to record that the petitioner and Sri D.S.M.Tripathi are liable to be tried for criminal contempt.
It is, therefore, directed that the records of the present writ petition be placed before the Division Bench having jurisdiction to hear criminal contempt, for further action in the matter. The Registrar General of this Court is also directed to forward a copy of this order to the Bar Council of Uttar Pradesh for further action as may be required against Sri D.S.M.Tripathi for the facts noticed above.
The recall application is dismissed for all the reasons recorded above.
Order Date :- 3.7.2015 Ashish Pd.