Andhra Pradesh High Court - Amravati
B Uday Kumar vs Chief Secy., Hyd., 8 Others, on 24 September, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
1
THE HON'BLE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
W.P. (PIL) NO.89 OF 2017
ORDER :(Per Hon'ble Acting Chief Justice C.Praveen Kumar)
1) The present Public Interest Litigation came to be initiated by one Boddepalli Uday Kumar of Dhavalapeta Village, Ganguvari Sigadam Mandal, Srikakulam District, seeking issuance of a Writ, more particularly in the nature of Mandamus to declare the inaction of Respondent No. 1 to 5 in not conducting an enquiry into the fraud played by 8th and 9th Respondents in availing maternity leave based on a false certificate.
2) The averments in the affidavit filed in support of the petition shows that, in a MPUP School at Dhavalapeta Village, the government appointed six [6] teachers. The said teachers formed themselves into groups and are not discharging their duties properly, thereby jeopardizing the interest and future of the school children. It is said that, one of the teacher in the school is attending duties in a drunken state. The mishebavior of one of the teacher towards a lady colleague ended up in lodging of report vide Cr. No. 109 of 2014 of G.Sigadam Police Station. During the course of investigation, in the said crime, one of the teacher is said to have disclosed that a lady teacher by name Lakshmi Kumari [Respondent No.8] utilized maternity leave for more than six [06] months by producing false and fake medical certificates even though she was not pregnant. On coming to know about the same, the petitioner along with other villagers thought of brining the same to the notice of the concerned and accordingly, on 10.11.2014, obtained all the certificates to establish the alleged fraud of 8th Respondent. On enquiry, it was revealed that 8th Respondent along with 9th Respondent, who is no other than the husband of 8th Respondent, 2 obtained false and fake certificates from Dr. Ponnana Someshwara Rao, who is running Mamata Nursing Home at Narasnnapeta Town and Mandal, Srikakulam District. The medical certificate indicates that, on 03.12.2010 at 3.00 PM, the 8th Respondent delivered a female child at Mamata Nursing Home. Another certificate, dated 31.05.2011, issued by the very same Doctor speaks about the treatment taken by the 8th Respondent from 03.12.2010 to 10.12.2010 and that she was advised bed rest from 11.12.2010 to 31.05.2011. It is pleaded that, when the delivery was normal, the question of granting maternity leave for six [06] months and thereafter bed rest for five [05] months is unknown. In-fact, the Counsel for the petitioner submits that, the 8th Respondent was never pregnant and never delivered a baby child. The alleged fraud was brought to the notice of the 7th Respondent by way of a representation, who in turn directed the Medical Board to examine the 8th Respondent.
3) It is stated that the Medical Board, which has been constituted for the purpose, examined and issued a false medical report, dated 12.03.2015, with cryptic medical terms. The said report was sent to the 7th Respondent, on 02.04.2015, by the Superintendent, Rajiv Gandhi Institute of Medical Sciences [for short 'RIMS'], Srikakulam. According to the Petitioner, on seeing the said report, number of doubts came to light, with regard to the certificate issued by the Mamata Nursing Home and the report given by RIMS General Hospital, where the 8th Respondent gave birth to a female child. It is stated that, as no action was taken in-spite of bringing the discrepancies in the two reports to the notice of the authorities. A representation, dated 05.08.2015 was made to the 4th Respondent, which was forwarded to the District Co-Ordinator for Hospital Services in District Medical Health Office, Srikakulam, with a direction to conduct detailed enquiry with regard to the certificate issued by RIMS, dated 12.03.2015. After due enquiry, the Co-Ordinator of District 3 Hospitals, in its letter, dated 06.10.2015, clearly referred to the discrepancies in the certificates, dated 03.12.2010, issued by Mamata Nursing Home and the one issued by RIMS, dated 12.03.2015.
4) It is said that, a legal notice came to be issued by the petitioner to the 4th Respondent arraying the erring individuals including 8th and 9th Respondents requesting the 4th Respondent to call for necessary records and initiating immediate action. When the 8th and 9th Respondents came to know about the steps taken by the petitioner for initiation of proceedings not only against 8th and 9th Respondents, but, also against all the Respondents, two [02] crimes were registered against the petitioner vide Cr. No. 220/2014 dated 27.12.2014 and Cr. No. 28/2015 dated 09.04.2015 for various offences.
5) Counters came to be filed disputing the averments made by the petitioner in the Public Interest Litigation.
6) The point for consideration is:
i. Whether the present Writ can be called a PIL?
ii. If so, whether the directions as sought for be ordered?
7) The learned Counsel for the Petitioner would contend that, it is a fit case where necessary steps should be taken for initiating suitable action against the concerned. It is said that the 4th Respondent ought to have taken immediate action by holding an enquiry, but, kept quiet. It is pleaded that, while the certificate issued by Mamata Nursing Home indicate that the delivery was normal on 03.12.2010, but, the medical certificate of RIMS states that the 8th Respondent delivered a female child at Mamatha Nursing Home who died after 09 hours at home. Furthermore, the Enquiry Officer, in the enquiry, found that the 8th and 9th Respondents registered the date of birth of their female child with name Muttarala Nikhit Roy, on 23.11.2010, with Gram Panchayat Office, Ponduru. Having 4 regard to the above, it is stated that, a fraud is played by the 8th and 9th Respondents. Hence, seeks an enquiry against the 8th and 9th Respondents.
8) The counsel for the Respondent Nos. 1 to 7 submits that many disputed questions are involved in the issue, and it may not be proper for this court to go into the said aspects. According to him, this litigation cannot be treated as Public Interest Litigation as it appears to have been filed as a counter-blast to the case registered against the petitioner at the instance of 8th Respondent. It is also pleaded that, the issue as to whether the certificate issued by Mamata Nursing Home; the one issued by the RIMS and the birth certificate issued by Grampanchayat are genuine or fake is a matter which requires adjudication in a different forum but not before this court in this Public Interest Litigation.
9) The matter on record, more particularly, the averments made in the affidavit filed in support of the petition show that, this Public Interest Litigation came to be filed on 20.02.2017 and numbered on 22.02.2017. Long prior to the filing of this PIL, two [02] crimes came to be registered against the petitioner, at the instance of 8th Respondent, vide Cr. No. 220/2014 dated 27.12.2014 by the S.H.O., Ponduru Police Station for the offences punishable under Sections 354, 506, 509 read with Section 34 of the Indian Penal Code and Section 3(i)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Cr. No. 28/2015 dated 09.04.2015 before G.Sigadam Police Station, Srikakulam district, for the offences punishable under Sections 506, 509, 352, 341 of the Indian Penal Code and Section 3(i)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Therefore, the arguments of the learned Counsel for the Respondents that this cannot be a Public Interest Litigation but has to be treated as the one filed to wreck private vengeance cannot be brushed aside. Though the learned counsel for the petitioner 5 tried to contend that those cases have nothing to do with the issue on hand, but, it is to be noted that, much prior to filing of this Public Interest Litigation, two crimes were registered against the Writ Petitioner and therefore, the argument that as a counter-blast to the proceedings initiated by the Writ Petition, these criminal cases came to be registered cannot be accepted.
10) Repeatedly, the Apex Court held that none has a right to approach the Court as a public interest litigant and that Court must be careful to see that member of the public, who approaches the Court in public interest, is acting bona fide and not for any personal gain or private profit or political motivation or other oblique considerations. (Vide: S.P. Gupta v. Union of India1"). Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest, an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not be publicity-oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of the public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique considerations. The Court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives, and try to bargain for a good deal as well as to enrich themselves. 1 [1982]2SCR365 6 Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.
11) Courts must do justice by promotion of good faith, and prevent abuse of law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (Vide:
"State of Maharashtra v. Prabhu2" "Andhra Pradesh State Financial Corporation v. GAR Re-Rolling Mills3"). No litigant has a right to unlimited draught on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. (Vide: "Dr. B.K. Subbarao v. Mr. K. Parasaran4"). Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public.
12) In matters relating to public interest litigation, the Supreme Court has time and again cautioned that the Court has to be satisfied about
(a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between the two conflicting Interests;
(i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the 2 (1995)ILLJ622SC 3 [1994]1SCR857 4 1996CriLJ3983 7 sphere reserved by the Constitution to the Executive and the Legislature.
The Court has to act ruthlessly while dealing with imposters and busy bodies or meddlesome interlopers impersonating as public spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. Reference can be made to the recent decision of the Apex Court in "Holicow Pictures Pvt., Ltd., Vs. Prem Chandra Mishra and others"5.
13) In "S.P.Anand v. H.D. Deve Gowda6", the Supreme Court held as follows:
"It is of utmost importance that those who invoke this Court's jurisdiction seeking a waiver of the locus standi rule must exercise restraint in moving the Court by not plunging in areas wherein they are not well-versed. Such a litigant must not succumb to spasmodic sentiments and behave like a knight-errant roaming at will in pursuit of issues providing publicity. He must remember that as a person seeking to espouse a public cause, he owes it to the public as well as to the court that he does not rush to court without undertaking a research, even if he is qualified or competent to raise the issue. Besides, it must be remembered that a good cause can be lost if petitions are filed on half-baked information without proper research or by persons who are not qualified and competent to raise such issues as the rejection of such a petition may affect third party rights. Lastly, it must also be borne in mind that no one has a right to the waiver of the locus standi rule and the court should permit it only when it is satisfied that the carriage of proceedings is in the competent hands of a person who is genuinely concerned in public interest and is not moved by other extraneous considerations. So also the court must be careful to ensure that the process of the Court is not sought to be abused by a person who desires to persist with his point of view, almost carrying it to the point of obstinacy, by filling a series of petitions refusing to accept the Court's earlier decisions as concluding the point. We say this because when we drew the attention of the petitioner to earlier decisions of this Court, he brushed them aside, without so much as showing willingness to deal with them and without giving them a second look, as having become stale and irrelevant by passage of time and challenged their correctness on the specious plea that they needed reconsideration. Except for saying that they needed reconsideration he had no answer to the correctness of the decisions. Such a casual approach to considered decisions of this Court even by a person well- versed in law would not be countenanced. Instead, as pointed out earlier, he referred to decisions having no bearing on the question, like the decisions on cow 5 2008 (1) CTC 711 6 1996(6) SCC 734 8 slaughter cases, freedom of speech and expression, uniform civil code, etc., we need say no more except to point out that indiscriminate of this important lever of public interest litigation would blunt the lever itself."
14) In "Ashok Kumar Pandey v. State of W.B.7", the Apex Court, after considering few decisions, on the aspect of public interest litigation, observed as follows:
"When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out. Before we grapple with the issue involved in the present case, we feel it necessary to consider the issue regarding public interest aspect. Public Interest Litigation which has now come to occupy an important field in the administration of law should not be "publicity interest litigation" or "private interest litigation" or "politics interest litigation" or the latest trend "paise income litigation". If not properly regulated and abuse averted it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well. There must be real and genuine public interest involved in the litigation and not merely an adventure of knight errant or poke ones into for a probe. It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. Courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. These aspects were highlighted by the Court in "The Janta Dal v. H.S. Chowdhary8" and 7 2004 (3) SCC 349 8 1992 (4) SCC 305 9 "Kazi Lhendup Dorji vs. Central Bureau of Investigation9". A writ petitioner who comes to the Court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective. [See "Ramjas Foundation v. Union of India10" "K.R. Srinivas v. R.M. Premchand11").
15) In "Sachidanand Pandey vs. State of W.B.12" the Apex Court held as follows:
"Today public spirited litigants rush to courts to file cases in profusion under this attractive name. They must inspire confidence in courts and among the public. They must be above suspicion. Public interest litigation has now come to stay. But one is led to think that it poses a threat to courts and public alike. Such cases are now filed without any rhyme or reason. It is, therefore, necessary to lay down clear guidelines and to outline the correct parameters for entertainment of such petitions. If courts do not restrict the free flow of such cases in the name of public interest litigations, the traditional litigation will suffer and the courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions.
I will be second to none in extending help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants."
16) In "Ramsharan Autyanuprasi v. Union of India13", it is held that the 'public interest litigation' is an instrument of the administration of justice to be used properly in proper cases. [See also "Bandhua Mukti Morcha v. Union of India14".
17) In "Jasbhai Motibhai Desai v. Roshan Kumar15" the Apex Court held that the application of the busybody should be rejected at the threshold in the following terms. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) 'person aggrieved'; (ii) 'stranger'; (iii) busybody or 9 1994 Supp (2) SCC 116 10 AIR 1993 SC 852 11 1994 (6) SCC 620 12 1987 (2) SCC 295 13 1989 Supp (1) SCC 251 14 1984(3) SCC 161 15 1976 (1) SCC 671 10 meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spooking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.
18) This sacrosanct jurisdiction of Public Interest Litigation should be invoked very sparingly and in favour of vigilant litigant and not for the persons who invoke this jurisdiction for the sake of publicity or for the purpose of serving their private ends.
19) Public Interest Litigation is no doubt a very useful handle for redressing the grievances of the people but unfortunately lately it has been abused by some interested persons and it has brought very bad name. Courts should be very very slow in entertaining petitions involving public interest in a very rare case where public at large stand to suffer. This jurisdiction is meant for the purpose of coming to the rescue of the down trodden and not for the purpose of serving private ends. It has now become common for unscrupulous people to serve their private ends and jeopardize the rights of innocent people so as to wreak vengeance for their personal ends. This has become very handy to the developers and in matters of public contracts. In order to serve their professional rivalry they utilize the service of the innocent people or organization in filing public interest litigation. The Courts are sometimes persuaded to issue certain directions without understanding implication and giving a handle in the 11 hands of the authorities to misuse it. Therefore, the courts should not exercise this jurisdiction lightly but should exercise in a very rare and few cases involving public interest of large number of people who cannot afford litigation and are made to suffer at the hands of the authorities.
20) It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievance go unnoticed, un- represented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and substantial rights and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters - government or private, persons awaiting the disposal of tax cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenu expecting their release from the detention orders etc. are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busy bodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no real public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffing their faces by wearing the mask of public interest litigation and get into the Courts by filing vexatious and frivolous petitions of luxury litigants who have nothing to lose but 12 trying to gain for nothing and thus criminally waste the valuable time of the Courts and as a result of which the queue standing outside the doors of the court never moves, which piquant situation creates frustration in the minds of the genuine litigants.
21) In "Common Cause (A Regd. Society) v. Union of India16" the Apex Court held as follows:
"59. Unfortunately, the truth is that PILs are being entertained by many courts as a routine and the result is that the dockets of most of the superior courts are flooded with PILs, most of which are frivolous or for which the judiciary has no remedy. As stated in "Dattaraj Nathuji Thaware v. State of Maharastra17" public interest litigation has nowadays largely become 'publicity interest litigation', 'private interest litigation', or 'politics interest litigation' or the latest trend 'paise income litigation'. Much of P.I.L. is really blackmail.
60. Thus, Public Interest Litigation which was initially created as a useful judicial tool to help the poor and weaker section of society who could not afford to come to courts, has, in course of time, largely developed into an uncontrollable Frankenstein and a nuisance which is threatening to choke the dockets of the superior courts obstructing the hearing of the genuine and regular cases which have been waiting to be taken up for years together."
69. Therefore, whether to entertain the petition in the form of Public Interest Litigation either represented by public-spirited person; or private interest litigation in the guise of public interest litigation; or publicity interest litigation; or political interest litigation is to be examined in the facts and circumstances recited in the petition itself. I am also of the view that if there is a buffer zone unoccupied by the legislature or executive which is detrimental to the public interest, judiciary must occupy the field to subserve public interest. Therefore, each case has to be examined on its own facts."
22) The Apex Court discussed about the scope of the public interest litigation in the context of transparency and probity in governance (vide:"Vineet Narain v. Union of India18" "Centre for Public Interest 16 2008 (5) SCC 511 17 AIR 2005 SC 540 18 (1998) 1 SCC 226 13 Litigation v. Union of India19", "Rajiv Ranjan Singh "Lalan" (VIII) v. Union of India20", "M.C. Mehta v. Union of India21").
23) These are few cases where the Supreme Court and the High Courts broadened the scope of public interest litigation and also entertained petitions to ensure that in governance of the State, there is transparency and no extraneous considerations are taken into consideration except the public interest. These cases regarding probity in governance or corruption in public life dealt with by the courts can be placed in the third phase of public interest litigation. Reference also deserves to be made to the judgment of the three-Judge Bench in "Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi22" in which a new dimension was given to the power of the Superior Courts to make investigation into the issues of public importance even though the petitioner may have moved the Court for vindication of a private interest. In that case the High Court had entertained a writ petition filed by Assistant Medical Officer of K.E.M. Hospital, Bombay questioning the assessment of answer sheets of the Post Graduate Medical Examinations held by the Bombay University in October 1985. He alleged malpractices in the evaluation of the answer sheets of the daughter of the appellant therein who, at the relevant time, was Chief Minister of the State. The learned Single Judge held that altering and tampering of the grade sheets was done by Dr. Rawal at the behest of the Chief Minister. The Division Bench affirmed the order of the learned Single Judge with some modification. While rejecting the objection raised on behalf of the appellant therein that the writ petition filed by the respondent cannot be treated as a petition filed in public interest, the Court observed:
"The allegations made in the petition disclose a lamentable state of affairs in one of the premier universities of India. The petitioner might have moved in his private interest but enquiry into the conduct of the 19 (2003) 7 SCC 532 20 (2006) 6 SCC 613 21 (2007) 1 SCC 110 22 (1987) 1 SCC 227 14 examiners of the Bombay University in one of the highest medical degrees was a matter of public interest. Such state of affairs having been brought to the notice of the Court, it was the duty of the Court to the public that the truth and the validity of the allegations made be inquired into. It was in furtherance of public interest that an enquiry into the state of affairs of public institution becomes necessary and private litigation assumes the character of public interest litigation and such an enquiry cannot be avoided if it is necessary and essential for the administration of justice."
24) Having regard to the existence of disputes between the petitioner in the PIL and respondent No. 8, it cannot be said that this writ is filed in the interest of public at large. Though in the affidavit filed in support of the writ petitioner, the petitioner referred to the manner in which the teachers in the said school are functioning, but his grievance is directed only against 8th Respondent with whom he has disputes. Stricto sensu, it cannot be treated as a PIL.
25) Even assuming for the sake of argument that a PIL would lie, many disputed question of facts are involved in the matter. The medical certificate issued by the RIMS, Srikakulam district reveals that, when the 8th Respondent was subjected to medical examination, they found no evidence of pregnancy, but, the medical certificate issued by Mama Nursing Home, dated 03.12.2010, show that the 8th Respondent has undergone normal Vaginal delivery in the Nursing Home at 3.00 PM and that it was her first pregnancy. While the certificate issued by the Panchyat Secretary, Gram Panchayat, Ponduru was in respect of a female girl Muttarala Nikhita Roy born on 21.11.2010 at Official Colony, Ponduru, Mandal, Srikakulam district. The name of the mother was shown as R. Laxmi Kumari and that father as M. Sunil Kumar. Well, there are some discrepancies in the certificates but one cannot hold in this PIL, which of the certificate is genuine or false or fake. The Forum to decide the issue lies elsewhere.
15
26) Having regard to the above findings, both on facts and maintainability, we do not intend to delve into these aspects to find out the truthfulness of the medical certificates as the forum lies elsewhere. Ergo, the Writ Petition is disposed of by giving liberty to the petitioner to approach forum competent to enquiry into the genuinity or otherwise of the two certificates and then proceed in accordance with law. No order as to costs.
27) Consequently, miscellaneous applications pending, if any, shall also stand closed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:24.09.2019.
SM.