Vijay Shanker Pandey vs Raj Kumar Singh And Ors.
2017 Latest Caselaw 5844 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
AFR
 

 
SPECIAL APPEAL  NO. 471 OF 2012
 

 
Vijay Shanker Pandey                                             ....... Appellant
 
Versus
 
Raj Kumar Singh  and others                                  ...... Respondents
 
AND
 

 
SPECIAL APPEAL (D)  NO. 555 OF 2012
 

 
Nagendra Prasad Singh                                     .... Appellant
 
Versus 
 
Raj Kumar Singh  and others                           ...... Respondents
 
 
 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Rang Nath Pandey,J.

(Delivered by Hon'ble Dr. Devendra Kumar Arora,J.)

Heard Sri Paavan Awasthi, Advocate holding brief of Sri Apoorva Tewari, and Sri Puneet Chandra, Advocate learned Counsel for the appellants, Sri M.P. Singh, learned Counsel for the respondent no.1 and the learned Standing Counsel.

The afore-captioned Special Appeals have been preferred by the appellants against the judgment and order dated 3.5.2012 passed by learned Single Judge in Writ Petition No. 2691 (MS) of 2012; Raj Kumar Singh Versus State of U.P. and others and has prayed for expunging the adverse remarks made against them and for setting aside the recovery of costs from the appellants.

In nutshell, the facts of the case are that one Raj Kumar Singh, resident of village Bani, District Lucknow, had preferred Writ Petition No. 2691(MS) of 2008 against the order of cancellation dated 7.11.2006 passed Sri N.P. Singh, Addl. District Magistrate (Administration), Lucknow, and the order dated 7.2.2008 passed by Sri Vijay Shaker Pandey, Commissioner, Lucknow Division, Lucknow, in Appeal No. 651/2005-06 preferred by the petitioner under Section 18 of the Arms Act against the order passed by the Addl. District Magistrate (Administration), Lucknow, cancelling the licence.

According to the said petitioner, he was granted a firm arm license of one N.P. Bore Revolver No. B-5597 under license no.15686 issued on 2.2.2000 by the licensing authority. On 20.12.2002, a show cause notice was issued by Additional District Magistrate, Lucknow to the petitioner calling for an explanation to show cause as to why his fire-arm licence may not be cancelled on account of pendency of 13 criminal cases pending against him to which petitioner tendered his reply stating therein that except one case registered as case crime no.68/2002 under Section 323,504 IPC in all other cases either the police had submitted final report or he has been acquitted by the competent court. However, the Addl. District Magistrate without considering the reply of the petitioner, passed order for cancellation of the arm licence of the petitioner.

Being dis-satisfied with the order of cancellation, the petitioner, aforesaid, filed an Appeal No.651/2005-06 before the Commissioner, Lucknow Division, Lucknow, who without considering and dealing the pleas as raised by the petitioner, rejected the appeal in a cursory manner vide order 7.2.2008. Therefore, the petitioner filed writ petition no.2691 (MS) of 2008 challenging both the aforesaid orders.

The learned Single Judge vide its judgment and order dated 3.5.2012 while quashing the aforesaid both the orders and allowing the writ petition observed as under:-

"The impugned order contained in annexures No. 1 passed by the Opposite party No. 2 shows that he has neither applied his mind nor has shown any will to fulfill his constitutional obligations. The impugned order is ex-facie a waste paper. Out of thirteen cases shown to have been registered against the petitioner, only one case pertains to the year 2002. Inspite of the pendency of 12 criminal cases against him, the opposite party No. 1 sanctioned him Armed licence. How he can take notice of this fact for suspension/cancellation of the lincence? The commissioner, as it appears from his judgment, has no judicial mind. He has gone to observe that the petitioner has a long criminal history. After all, a judicial authority is bound to apply the rule of law and, as such, the commissioner was expected to have basic knowledge of the Arms Act. Section 17 of the Arms Act deals with variation, suspension and revocation of licences. Under this provision, an arm licence can be suspended or revoked, if the licensing authority is satisfied that the holder of the licence is prohibited by this Act or for any law for the time being enforced to acquire a licence or was of unsound mind or unfit to have a licence for any legal and valid reason or a licence holder is posing a threat to the security of the public peace or public safety. All these requirements are missing in both the orders passed by the opposite parties. Assuming for the sake of arguments, the petitioner has suppressed the criminal cases pending against him, the opposite parties could have mentioned it in the show cause notice and, thereupon, could have passed the orders.

This Court has repeatedly hold that the rules of natural justice have to be followed; that a message may be transmitted to the public at large that rule of law is prevailing and the constitutional mechanism has not yet collapsed. I am mentioning herein following relevant authorities of law laid down by this Court and for the application in letter and spirit:-

Recently in Gurdev Kaur & others V. Kaki & others, 2006(4) SER-371, the Hon'ble Apex Court has given a note of caution to such orders which are stigmatic on the justice delivery system in the mind of the public at large and has held; "Judges must administer law according to the provisions of law. It is the bounder duty of judges to discern legislative intention in the process of adjudication. Justice administered according to individual's whim, desire, inclination and notion of justice would lead to confusion, disorder and chaos."

The impugned orders are a blatant violation of the principles of natural justice. The impugned orders contained in Annexure Nos. 1 & 2 deserves to be quashed and the matter deserves to be looked into afresh by the present incumbents holding the post of ADM, Commissioner (Lucknow). The writ petition is accordingly allowed with Rs. 20,000 as cost which shall be realised from the persons who were posted as Commissioner, Lucknow Division and Additional District Magistrate on the relevant date, who have passed the impugned orders. The said cost be paid to the petitioner by these two persons within thirty days from the production of copy of order to the District Magistrate, Lucknow who is directed to recover the amount of cost from the officers within this period and they or any of them fails to pay shall get it recovered as land revenue and pay it to the petitioner.

Let the copy of the judgment be sent to Chief Secretary, Govt. of U.P. with a direction to place it on the personal file of the officers concerned.

With these observation, the Writ petition is allowed. "

The adverse observations made against the appellant have compelled them to file the instant appeal for expunction/deletion of remarks from the judgment as it has caused serious prejudice to them. According to the learned Counsel for the appellants, the impugned strictures passed against them are unreasonable and have been passed without affording any opportunity to the appellant. It has been vehemently argued that merely because an official violates a certain provision that does not enable the court to pass strictures against the officials and order compensation.

A preliminary objection has been raised by the Standing Counsel regarding maintainability of Special Appeal on the ground that the writ petition before learned Single Judge has been filed against the appellate order and thus the Special Appeal is barred under Chapter VIII Rule 5 of the Allahabad High Court Rules.

Refuting the objection of the Standing Counsel, Sri Pawan Awasthi, learned Counsel for the appellant on the strength of the decisions rendered in Oriental Bank of Commerce versus Union of India and others; (1997) 77 FLR 271, Special Appeal No.814 of 2009; U.P.State Industrial Development Corporation Limited versus Debts Recovery Appellate Tribunal, Allahabad and others decided on 8.6.2009, Dr Pankaj Mahendra Versus Cantonment Board, Agra and another (2010) 1 ALL LJ 157, M/s Vajara Yojna Seen Farm Versus Presiding Officer, Labour Court-II,Kanpur; 2003 ALL LJ 883, Union of India and others versus Ashish Kumar Bala [(2008)1 UPLBEC 171 and Full Bench decision rendered in Sheet Gupta Versus State of U.P. and others [2010(28) LCD 1045] argued that the provision of Rule 5 of Chapter VIII of the Rules do not use any such words "conferred by some Act". It uses the words "made or purported to be made in the exercise or purported exercise of appellate or revisonal jurisdiction under any such Act" and as such the appeal is maintainable. It has also been asserted that the appellants were not party to the writ petition in their personal capacity and were also not put to notice before passing of the impugned judgment. In these circumstances, retention of the strictures on the records would cause irreparable injury, Moreso, expunction of the stricture would not affect the reasons or ultimate result of the impugned judgment and would not come in the way of private respondent as far as its implementation is concerned.

Chapter VIII Rule 5 of the Rules of Court, which deals with Special Appeal and runs as under:-

Special Appeal:- An appeal shall lie to the Court from a judgment [ not being a judgment passed in the exercise of appellate jurisdiction] in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of criminal jurisdiction [ or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a Tribunal, Court of Statutory Arbitrator made or purported to be made in the exercise or purported of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.

In Vajara Yojna's case [supra] this Court considered various aspects regarding maintainability of the appeal and held that the Special Appeal is excluded from a judgement of one Judge of this Court in the following categories:-

"(i) Judgment of one Judge passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court.

(ii) Judgment of one Judge in the exercise of revisional jurisdiction.

(iii) Judgment of one Judge made in the exercise of its power of Superintendence.

(iv) Judgement of one Judge made in the exercise of criminal jurisdiction.

(v) Judgment or order of one Judge made in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award of a Tribunal, Court of Statutory Arbitrator made or purported to be more in exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in State List or Concurrent List.

(vi) Judgement or order of one Judge made in exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any Judgment, order or award by the Court or any officer or authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any Uttar Pradesh Act or under any Central Act.

After considering the Chapter VIII, Rule 5 and taking into consideration the fact that the petitioner has filed the writ petition when his licence was cancelled under the Arms Act. Entry 5 of List I- of the Schedule pertains to Arms, firearms, ammunition and explosives , which is the Union List. Thus, we have no hesitation in holding that the Special Appeal is maintainable as urged by Shri Paavan Awasthi,Advocate. Accordingly, the preliminary objection is, overruled.

As regard the adverse remarks, Learned counsel for the appellants has also submitted that strictures against an authority or judicial officer should be sparingly made in judgments and in any case should not be made without affording a hearing to the authority or the judicial officer, as the case may be. In support of his contention, learned counsel has relied upon the decision of the Supreme Court renderned in the Matter of 'K' a Judicial Officer (2001)3 SCC 54 and Prakash Singh Teji Versus Northern India Goods Transport Company Private Limited and another (2009)12 SCC 577, and reiterated that expunction of the stricture would not affect the reasons for the judgment.

In contrast, learned Counsel for the private respondent on the strength of the decisions rendered in Bharat Amratlal Kothari and another versus Dosukhan Samadkhan Sindhi and others (2010) 1 SCC 234 and President/ Secretary, J.K. Synthetics Mazdoor Union (CITU), Indira Gandhi Nagar,Kota and others (2017)1 SCC427 argued that he has no objection if the remarks made in the impugned judgment against the appellants are removed/deleted provided that it does not affect the ultimate result of the judgment passed by the learned Single.

As averred above, the appellants are not aggrieved by the impugned judgment whereby the writ petition preferred by Raj Kumar Singh has been allowed but they are only aggrieved with the adverse remarks made against the appellants without affording any opportunity to them. It is also not in dispute that the aforesaid appellants were not party to the writ petition in their personal capacity.

In the Matter of 'K' a Judicial Officer, which has been relied upon by the appellants, the Apex Court observed that though the power to make remarks or observations is there but on being questioned, the exercise of power must withstand judicial scrutiny on the touchstone of following tests: (a) whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. The overall test is that the criticism or observation must be judicial in nature and should not formally depart from sobriety and moderation.

The beauty of the Indian judicial system lies in its hierarchical system which provides for the correction of the judgments and orders of the subordinate courts by the superior courts but without any malice towards any one who went wrong in passing the same. The Sub-ordinate courts accepts the wisdom of superior courts unmindful of their decisions going wrong with the zeal to perform better and to act more wisely in future. But if judges of the superior courts starts rebuking the officers of the sub-ordinate judiciary/quasi-judicial authority for taking a particular view which may not find approval of higher echelons it would create ripples in the judiciary destroying the very fabric of its independence and fearless approach to decision making process.

At this juncture, it would be apt to refer some of the decisions in which, the Apex Court has emphasized for using strong language and derogatory remarks in the judgment against the Judge/quasi judicial authority. In Ishwari Prasad Mishra Vs. Mohd Isha AIR 1963 SC 1728 a three Judges Bench of the Supreme Court has emphasized the need to adopt utmost judicial restrain against using strong language and imputation of motive against the lower judiciary, as in such matters the judge concern has no remedy in law to vindicate his position.

Their Lordships of the Supreme Court in Nirajan Patnaik Vs. Shashi Bhushan Kar and another (1986) 2 SCC 569 advised that harsh and disparaging remarks are not to be made against persons and authorities whose conduct come into consideration before Courts of law unless it is really necessary for the decision of the case. They also reminded that higher the forum, greater are the powers and the greater is the need for restrain and mellowed approach.

Of late, in A.M. Mathur Vs. Pramood Kumar Gupta (1990) 2 SCC 533 the Supreme Court has sounded a note of caution that as a general principle for the proper administration of justice "derogatory remarks ought not to be made against the persons or the authorities whose conduct come into consideration unless it is absolutely necessary for the decision of the case".

Again in K.P. Twari Vs. State of Madhya Pradesh (1994) 1 SCC 450, the Apex Court reiterated that using intemperate language and castigating strictures on the officers of the lower judiciary diminishes the image of the judiciary as a whole in the eyes of public and therefore the higher courts should exercise restrain from using disparaging remarks against the lower judiciary.

In Brij Kishore Thakur Vs. Union of India (1997) 4 SCC65 the Apex Court disapproved the practice of passing strictures against sub-ordinate officers and observed that no greater damage can be caused to the administration of justice than by publicly expressing lack of faith in the sub-ordinate judiciary by the higher courts.

In Mona Panwar Vs. High Court of Judicature at Allahabad and others (2011) 3 SC 496 while expunging the remark made by the High Court on judicial side against a subordinate judicial officer observed that to 'err is human' and the dictum applies even to judges at all levels as it is often said that judge is yet to be born who has not committed any error. Therefore, there is a need to adopt utmost judicial restrain and not to make any disparaging remarks against the members of lower judiciary while scrutinizing their judgments and orders.

Apart from the above legal position, undoubtedly, a superior court is loco-parentis vis-a-vis the subordinate courts. Loco-parentis is a person who is in the situation of a lawful father of a child. Therefore, the relationship of a superior court with that of subordinate court is like a father to a child. It acts as its parent. The superior court as such not only acts as a controlling or supervising authority of the subordinate court but as a friend, philosopher and guide. Therefore, the superior court has to keep in mind the concept of loco-parentis while sitting in appeal over the judgments and orders of the subordinate court to keep at bay any uncalled for and unwarranted remarks.

A judge functioning at any level discharges his functions independently and judicially. He has his own dignity and credibility. The same has to be maintained and preserved by all specially the superior court that acts as loco-parentis by avoiding unwarranted comments on the reputation of the officer as it creates a dent in the image of the entire judicial system. Instead, if necessary the Court should adopt a reformative method on administrative side.

A superior court is only an appellate or revisional authority of the judgment and order of the court below to test its correctness and soundness but is not expected to sit in judgment over the conduct of the judicial or quasi judicial authority whose decisions are in issue before it and to indulge in criticising the conduct of that sub-ordinate functionary. The superior court does not act as a disciplinary authority while dealing with the judgment or order of the lower authority in appeal or revision.

It would not be out of place to mention that the Apex Court I the case of A.M. Mathur v. Pramod Kumar Gupta, (1990) 2 SCC 533, made a note of caution emphasizing a general principle of highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct

Thus, it can easily be summed up that a superior court has no authority of law to castigate or stigmatize an officer through a judgment as it would be plainly condemning him in flagrant violation of the principles of natural justice without holding an inquiry.

In view of the aforesaid legal position, the adverse remarks made against the appellants in the impugned judgment dated 3.5.2012 as also the recovery of Rs. 20,000/- as costs from the appellants shall stand deleted and shall not be read. However, it is made clear that deletion of the remarks would not affect the findings with regard to quashing of the orders dated 7.11.2007 and 7.2.2008. Subject to the aforesaid, the Special Appeals stand allowed in above terms only.

Order Date :27th October, 2017

MH/-

[Rang Nath Pandey,J] [ Devendra Kumar Arora,J]