Allahabad High Court
State Of U.P. Thru. Prin. Secy. Home, ... vs Om Prakash Chaudhary on 29 March, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Neutral Citation No. - 2024:AHC-LKO:26211 Case :- Civil Misc. Review Application No.4 of 2024 Applicant :- State of U.P. Thru. Prin. Secy. Home, Lko. and others Opposite Party :- Om Prakash Chaudhary Counsel for Applicant :- C.S.C. Counsel for Opposite Party :- Sant Lal Dixit Hon'ble Brij Raj Singh, J.
1. This review application under Chapter IX Rule 14 of the Rules of the Court, 1952 has been filed by the State for review of the judgement and order dated 31.01.2023 passed by this Court in Writ-A No.26634 of 2018.
2. The factual matrix of the case is:-
(a) That respondent-petitioner had earlier filed Writ Petition No.6425 (SS) of 2007, tilted as Om Prakash Chaudhary and four others vs. State of U.P. and three others, challenging the termination order dated 12.9.2007 and consequential order dated 17.9.2007. The said writ petition was dismissed vide order dated 07.03.2011, so far it relates to the respondent-petitioner.
(b) Thereafter, the respondent-petitioner again filed Writ-A No.48221 of 2013, titled as Om Prakash Chaudhary Vs. State of U.P. and six others, with the prayer that since the case of the similarly situated persons is being considered, therefore, a direction may be issued to the State-authorities to consider the case of the respondent-petitioner as well. The said writ petition was disposed of vide order dated 9.9.2023 with direction that in case policy decision has been taken to consider the similarly situated candidates, then the case of the petitioner should also be considered by the authority, in accordance with law, in case the petitioner falls within the consideration zone of the aforementioned policy.
(c) Thereafter, the respondent-petitioner again filed Writ-A No.63286 of 2014, titled as Om Prakash Chaudhary Vs. State of U.P. and five others, with prayer to consider the claim of the respondent-petitioner for reinstatement/ reappointment in service on the post of Constable in view of the judgement and orders passed by the Supreme Court as well as by this Court. The aforesaid writ petition was disposed of vide order dated 26.11.2014 with direction to consider the case of the petitioner in case he falls in the zone of consideration.
(d) In pursuance of the direction issued by this Court on 9.9.2013 in Writ-A No.48221 of 2013, the representation preferred by the respondent-petitioner was considered and rejected vide order dated 03.10.2014.
(e) The order dated 03.10.2014 along with termination order dated 12.9.2007 were challenged by the respondent-petitioner in Writ-A No.26634 of 2018, which was allowed by this Court vide judgement and order dated 31.01.2023 and the same is sought to be reviewed by way of the present review application.
3. Learned counsel for the review-applicant submits that Writ-A No.26634 of 2018 has been filed by the respondent-petitioner, who had earlier filed Writ Petition No.6425 (SS) of 2007 challenging the same termination order dated 12.09.2007 and the consequential order dated 17.09.2007 before this Court, which was dismissed vide order dated 7.3.2011. Therefore, the relief claimed by the respondent-petitioner in Writ-A No.26634 of 2018 is the same, which was earlier refused by this Court in Writ Petition No.6425 (SS) of 2007. The respondent-petitioner has specifically stated in paragraph-1 of Writ-A No.26634 of 2018 that "this is the first writ petition filed by him before this Court for the same cause of action and no other writ petition is pending or disposed of", which is concealment of material fact because the respondent-petitioner had already filed Writ Petition No.6425 (SS) of 2007 for the same relief, which was refused by this Court. He further submits that the respondent-petitioner had played fraud before this Court by concealing the material fact because nowhere in the writ petition, it is indicated that he had earlier filed Writ Petition No.6425 (SS) of 2007, which was dismissed and the impugned termination order dated 12.09.2007 and the consequential order dated 17.09.2007 were not interfered with by this Court.
4. In support of his contention, learned counsel for the review-applicant has relied upon the following judgements:-
1. Surya Deo Mishra Vs. State of U.P., (2005) SCC Online All 1382: (2006) 2 All LJ 1 (FB);
2. United India Insurance Co. Ltd. Vs. Rajendra Singh and others, (2000) 3 SCC 581;
3. Bhaurao Dagdu Paralkar Vs. State of Maharashtra and others, (2005) 7 SCC 605; and
4. In Re: Perry Kansagra, Suo-Motu Contempt Petition (Civil) No.3 of 2021, (2022) SCC Online SC 1516"
5. Learned counsel for the review-applicant submits that on the analogy of the judgments rendered in the cases of Rajendra Singh (supra) Bhaurao Dagdu Paralkar (supra) and Perry Kansagra (supra), the order passed by this Court in in Writ-A No.26634 of 2018 is liable to be recalled for the reason that the respondent-petitioner has concealed the material fact of earlier writ petition for the same cause of action, which was already dismissed by this Court. He also submits that judicial discipline demands that a person should come with clean hands before the Court and if the Court had refused to interfere with the impugned order, the same cannot be challenged in successive writ petition. For this contention, he has drawn the attention of the Court towards the relevant paragraphs in the following judgements:-
6. Paragraph 24 of the judgement rendered in the case of Surya Deo Mishra (Supra) reads as under:-
"The second question need not detain us any longer. In the first writ petition relief of mandamus was sought not to retire the petitioner on 31.1.1994 instead of 31.1.1996 and salary was also claimed. The writ petition was dismissed as infructuous. He therefore, cannot be permitted to take up the same issue by means of any subsequent writ petition. The rules of this Court clearly prohibit such course of action. Rule 7 of Chapter XXII of the Allahabad High Court Rules 1952 provides that, where an application has been rejected, it shall not be competent for the applicant to move a second application on the same fact. Even if the petitioner has withdrawn the earlier writ petition without a prayer to file a fresh writ petition, a second writ petition for the same cause of action is not maintainable. This cardinal rule of public policy to discourage multiplicity of proceedings, also incorporated in Order 2 Rule 2 of the Code of Civil Procedure, the principles whereof are also applicable to writ proceedings, is too well settled to merit any elaboration. For this, it will be sufficient to refer to the judgments in B.N. Singh v. State of U.P. 1979 ALJ 1184 Dr. Ramji Dwivedi v. State of and Ors. equivalent to 1983 UPLBEC 426; Niranjan Rai v. District Inspector of Schools (1991) 2 UPLBEC 1416; Sahib Ram v. State of Haryana ; Harish Chandra Srivastava v. State of U.P. and Ors. (1967) 3 UPLBEC 1840 (DB); Keshav Tripathi v. State of U.N.P. and Ors. 1997 ALJ 28 (DB) and S.L. Bathla v. State Bank of India (1999) 1 UPLBEC 233. This rule was succinctly explained in Sttae of U./P. and another vs. Labh Chand by the Apex Court in paragraph 20 as follows:-
"20. When a Judge of Single Judge Bench of a High Court is required to entertain a second writ petition of a person on a matter, he cannot, as a matter of course, entertain such petition, if an earlier writ petition of the same person on the same matter had been dismissed already by another Single Judge Bench or a Division Bench of the same High Court, even if such dismissal was on the ground of laches or on the ground of non availing of alternative remedy. Second writ petition cannot be so entertained not because the learned Single Judge has no jurisdiction to entertain the same, but because entertaining of such a second writ petition would render the order of the same court dismissing the earlier writ petition redundant and nugatory, although not reviewed by it in exercise of the recognized power. Besides, if a learned Single Judge could entertain a second writ petition of a person respecting a matter on which his first writ petition was dismissed in limine by another learned Single Judge or a Division Bench of the same court, it would encourage an unsuccessful writ petition to go on filing writ petition after writ petition in the same matter in the same High Court, and have it brought up for consideration before one Judge and another. Such a thing, if is allowed to happen, it could result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the High Court exercising its writ jurisdiction under Article 226 of the Constitution in that any order of any bench of such court refusing to entertain a writ petition could be ignored by him with impunity and relief sought in the same matter by filing a fresh writ petition. This would only lead to introduction of disorder, confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court for there could be no finality for an order of the court refusing to entertain a writ petition. It is why, the rule of judicial practice and procedure that a second writ petition shall not be entertained by the High Court on the subject matter respecting which the first writ petition of the same person was dismissed by the same court even if the order of such dismissal was in limine, be it on the ground of laches or on the ground of non-exhaustion of alternative remedy, has come to the accepted and followed as salutary rule in exercise of writ jurisdiction of courts."
7. Paragraphs 13, 14, 15 and 16 of the judgement rendered in the case of Rajendra Singh (supra) read as under :-
"13. In S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagnnath (dead) by Lrs. & ors. {1994 (1) SCC 1} the two Judges Bench of this Court held:
"Fraud avoids all judicial acts, ecclesiastical or temporal- observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree- by the first court or by the highest court-has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings."
14. In Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd. {1996 (5) SCC 550} another two Judges bench, after making reference to a number of earlier decisions rendered by different High Courts in India, stated the legal position thus:
"23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order."
15. It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.
16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim."
8. Paragraph 10 fo the judgement rendered in the case of Perry Kansagra (supra) reads as under:-
"On 25.01.2022, following the suo-moto notice for contempt of Court, this Court framed charges and issued notice to the contemnor. The matter was adjourned from time to time to give further opportunities to the contemnor. Finally, by its judgment dated 11.07.2022, this Court convicted the contemnor for having committed civil and criminal contempt of this Court's orders. The relevant portion of the order is as follows:
"15. It is thus well settled that a person who makes a false statement before the Court and makes an attempt to deceive the Court, interfered with the administration of justice and is guilty of contempt of Court. The extracted portion above clearly shows that in such circumstances, the Court not only has the inherent power but it would be failing in its duty if the alleged contemnor is not dealt with in contempt jurisdiction for abusing the process of the Court.
16. The essential features of the matter as culled out in paragraph 34 of the Order dated 07.10.2021 were relied upon to arrive at a prime facie observation that Perry was guilty of contempt of Court. Though notice was issued to Perry, no response has been tendered. We find that the material on record clearly shows violation on part of Perry. The observations made in paragraph 34 of the order dated 07.10.2021 were on the basis of record.Having considered the entirety of the matter, in our view, Perry is guilty of having committed criminal contempt of Court part from the contempt for violating express undertakings given to the Courts, including this Court. We accordingly hold Perry guilty under the Contempt of Courts Act, 1971.
17. Though the instant proceedings can be taken to logical conclusion and order of sentence can be awarded even in the absence of Perry, we give final opportunity to Perry to present himself before this Court on 22.07.2022 at 3.00 pm along with Aditya. He shall then have an opportunity to advance appropriate submissions on the issue of punishment to be awarded to him. It shall also be open to Perry to purge himself of contempt in which case a sympathetic view may be taken in the matter.
Let copy of this Order be served upon Perry through email ID used by him in serving process upon Smriti. Additionally, a copy shall be given to Mr. P.K. Manohar, learned Advocate."
9. On the other hand, learned counsel for the respondent-petitioner has submitted that the Additional Chief Standing Counsel Mr. Vinod Kumar Singh had appeared before the Writ Court, therefore, the present review application cannot be argued by another Standing Counsel.
10. In support of his contention, learned counsel for the respondent-petitioner has placed reliance on the following judgements:-
1. Tamil Nadu Electricity Board and another vs. N. Raju Reddiar and another, 1997 (9) SCC 736;
2. Sidheswar Mishra Vs. State of U.P. and another, 2006 (9) ADJ 427
3. Civil Misc. Review Application No.432 of 2023, Jag Mohan Agarwal Vs. Smt. Kanchan Kumari Jain, decided on 31.10.2023.
11. For the sake of argument, paragraph 1 of the judgement rendered in the case of Tamil Nadu Electricity Board (supra) is quoted as under:-
" It is a sad spectacle that new practice unbecoming of worthy and conducive to the profession is cropping up. Mr. Mariaputham, Advocate-on-Record had filed vakalatnama for the petitioner-respondent when the special leave petition was filed. After the matter was disposed of, Mr. V. Balachandran, Advocate had filed a petition for review. That was also dismissed by this Court on April 24, 1996. Yet another advocate, Mr. S.U.K. Sagar, has now been engaged to file the present application styled as "application for clarification", on the specious plea that the order is not clear and unambiguous. When an appeal/special leave petition is dismissed, except in rare cases where error of law or fact is apparent on the record, no review can be filed; that too by the advocate on record who neither appeared nor was party in the main case. It is salutary to not that court spends valuable time in deciding a case. Review petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has become, in recent time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the advocate on record at earlier stage. This is not conducive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession. In Review Petition No.2670/96 in CA No.1867/92, a Bench of three Judges to which one of us, K. Ramaswamy,J., was a member, has held as under:
"The record of the appeal indicates that Shri Sudarsh Menon was heard and decided on merits. The Review Petition has been filed by Shri Prabir Chowdhury who was neither an arguing counsel when the appeal was heard nor was he present at the time of arguments. It is unknown on what basis he has written the grounds in the Review Petition as if it is a rehearing of an appeal against our order. He did not confine to the scope of review. It would be not in the interest of the profession to permit such practice. That part, he has not obtained " No Objection Certificate" from the Advocate-on-Record in the appeal, in spite of the fact that Registry had informed him of the requirement for doing so. Filing of the "No Objection Certificate" would be the basis for him to come on record. Otherwise, the Advocate-on-Record is answerable to the Court. The failure to obtain the "No Objection Certificate" from the erstwhile counsel has disentitled him to file the Review Petition. Even otherwise, the Review Petition has no merits, It is an attempt to reargue the matter on merits. On these grounds, we dismiss the Review Petition".
12. Learned counsel for the respondent-petitioner has further submitted that similarly situated persons filed Civil Misc. Writ Petition No.45645 of 2007 before this Court, which was allowed by this Court and later on, the said judgement and order passed by a co-ordinate Bench of this Court was affirmed by the Division Bench. Subsequently, the matter went to the Supreme Court and the judgement and order passed by the learned Single Judge has been affirmed by the Supreme Court as well. Therefore, the respondent-petitioner has every right to challenge the impugned termination order dated 12.9.2007 and the order dated 03.10.2014, by which his representation was rejected.
13. Learned counsel for the respondent-petitioner has submitted that another similarly situated person filed Writ Petition No.34305 of 2018, Mohd. Naseem Vs. State of U.P. and others, and the order passed in that writ petition has been complied with and he has been reinstated. It is further submitted that Mohd. Naseem was also one of the petitioners in Writ Petition No.6425 (SS) of 2007 and his writ petition was also dismissed along with the respondent-petitioner. It has also been submitted that once the order passed in respect of Mohd. Naseem has been complied with and he has been reinstated, the petitioner is also entitled for the same relief.
14. Heard Sri Indrajeet Shukla, learned Standing Counsel for the review-applicant and Sri Sant Lal Dixit, learned counsel for the respondent-petitioner.
15. So far as the argument of the respondent-petitioner regarding maintainability of the review application is concerned, it is to be noted that the present review applicant has been filed against the judgement and order dated 31.03.2023 passed in Writ Petition No.26634 of 2018 by the State authorities through Standing Counsel on behalf of the Advocate General, who is empowered to represent the State. The State is always represented through Lawyers, who are empanelled by the competent authority of State and if a particular Lawyer, who argued the case is discontinued, it does not mean that the State will be remedy-less. Once the State authorities are aggrieved or legally infringed, certainly they will approach the Lawyers, who are empanelled by the State and their cause will be espoused by the counsel representing the State. Therefore, the objection raised by the learned counsel for the respondent-petitioner that the learned Additional Chief Standing Counsel, who had appeared in the writ petition, will have to contest the review application as well and no other counsel would be allowed to argue, cannot be accepted and is over ruled. The review application filed by the subsequent Standing Counsel cannot be thrown on the ground that the earlier counsel could have been allowed to argue the case.
16. So far as the merit of the case is concerned, I have to see the prayer made in the writ petition, which indicates that the respondent-petitioner has made prayer to quash the order dated 3.10.2014 rejecting the representation of the respondent-petitioner in pursuance to the direction issued by this Court and the original termination order dated 12.9.2007. The record reveals that the respondent-petitioner had earlier filed Writ Petition No.6425 (SS) of 2007 with a prayer to quash the order dated 12.9.2007. Thus, it is clear that the respondent-petitioner had filed the said writ petition challenging the said termination order, but the relief was refused by this Court. Undoubtedly, the respondent-petitioner deliberately concealed the material fact by not disclosing that he had not earlier challenged the same termination order by way of filing Writ Petition No.6425 (SS) of 2007, which was dismissed on 07.03.2011.
17. The argument of learned counsel for the respondent-petitioner that since similarly situated person, namely, Mohd. Naseem, has been reinstated in pursuance to the order passed by this Court, who was also granted the benefit of the judgement and order dated 16.12.2016 passed by a co-ordinate Bench of this Court in Writ Petition No.3500 (SS) of 2015, Ali Mohammad Vs. State of U.P. and others, the respondent-petitioner is also entitled to be reinstated, is not tenable for the reason that the respondent-petitioner has committed a wrong deliberately by concealing the material fact of filing a writ petition earlier for the same relief, which was already refused by this Court, and now he is trying to get the benefit of the similar order passed in favour of Mohd. Naseem on the basis of parity. It is settled law that a person who comes into equity, must come with clean hands. A Court of equity refuses relief to a person whose conduct in regard to the subject matter of the litigation has been improper, which is propounded by the Supreme Court in paragraph 12 of Arunima Baruah Vs. Union of India and others, (2007) 6 SCC 120.
18. In the present case, it is established on record that the respondent-petitioner had sought the relief in the present writ petition, which was already refused by a co-ordinate Bench of this Court in earlier Writ Petition No.6425 (SS) of 2007. In case the respondent-petitioner claims the benefit of the judgement and order passed in the case of Ali Mohammad (supra), it was the only recourse to the petitioner to move a review application in Writ Petition No.6425 (SS) of 2007, but without taking resort to that, he has filed the second writ petition challenging the same termination order, which was not interfered with in the earlier writ petition. Therefore, In view of law propounded by the Supreme Court in the case of Surya Deo Mishra (supra), the writ petition was not maintainable for the same cause of action, which was refused by this Court in the earlier round of litigation.
19. In view of the observations made herein-above, the review application is allowed and the judgment and order dated 31.01.2023 passed by this Court in Wit-A No.26634 of 2018 is recalled and consequently Wit-A No.26634 of 2018 is dismissed.
20. It is, however, open to the respondent-petitioner to take recourse to the remedy as may be available to him under law. No order as to costs.
.
(Brij Raj Singh, J.) Order Date :- 29 March, 2024 Rao/-