Kerala High Court
Dr.Nivedita.P.Haran vs B.Ramdas on 13 August, 2008
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 590 of 2008(W)
1. DR.NIVEDITA.P.HARAN, PRINCIPAL
... Petitioner
Vs
1. B.RAMDAS, S/O.BHOOTHALINGAM PILLAI,
... Respondent
2. R.JAYAPRAKASH, S/O.T.GOVINDAN NAIR,
3. PRINCIPAL SECRETARY TO GOVERNMENT,
4. THE DISTRICT COLLECTOR,
5. THE TAHSILDAR, TALUK OFFICE,
6. THE STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.P.RAVINDRAN (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :13/08/2008
O R D E R
S.SIRI JAGAN, J.
==================
R.P.No.590 of 2008 in
W.P.(C) Nos.16260, 16363
and 16393 of 2008
==================
Dated this the 13th day of August, 2008.
O R D E R
This review petition is filed by Dr.Nivedita P. Haran, the Principal Secretary to the Government of Kerala, Revenue Department, who is impleaded in her personal capacity as the 2nd respondent in W.P.(C) No. 16363 of 2008, seeking review of the common order dated 2.6.2008 in these three writ petitions, which reads thus:
"W.P(C) No. 16260/2008 was filed on Friday. That was against Ext.P3 show cause notice directing the petitioner in that writ petition to show cause as to why the properties occupied by the Trivandrum Golf Club should not be resumed by the Government for violation of the terms of the licence issued to the Golf Club, in 1967. On Saturday, the petitioner moved the Honourable Judge holding the charge of the functions of the Chief Justice for moving the writ petition on Saturday and the learned Judge directed the office to ascertain from the Judge concerned as to whether he is willing to hear the matter on Sunday. I being the concerned Judge, when the office contacted me over phone, directed them to ascertain from the learned Advocate General as to whether the further action on the basis of Ext.P3 can be postponed till the writ petition is heard for admission today so that a Saturday-sitting can be avoided, which is of inconvenience to me and all concerned. The learned Advocate General informed the office that he will issue appropriate instructions to the Government in that regard and therefore, it was not decided to hear the writ petition on Saturday. The learned Government Pleader submits that as per the directions r.p.590/08 2 from the Advocate General, he contracted the Revenue Secretary and the District Collector, Thiruvananthapuram, and instructed them to keep further proceedings in abeyance till the matter is heard on Monday. The learned Government Pleader further submits that the Advocate General had also contacted the Chief Secretary and the Law Secretary in the matter conveying the above. The Law Secretary is stated to have informed the same to the Revenue Secretary. In spite of the above, the Revenue Secretary has gone ahead to pass orders on Ext.P3 disregarding the instructions of the learned Advocate General. It is also submitted by the counsel for the petitioner that the order pursuant to the show cause notice was served on him at 9.30 p.m. at the Club premises on Saturday, the 31st May, 2008, pursuant to which possession was taken today morning.
2. I must say that the action of the Revenue Secretary, if true, is thoroughly unbecoming of a Secretary to the Government. The Advocate General, being a constitutional functionary and being vested with the function of advising the Government, when issues an instruction to the Revenue Secretary, the Revenue Secretary was bound to obey the same. The action of the Revenue Secretary, if true, amounts to negation of the very Constitution under which he/she functions and shows scant regard for the judicial system itself, of which the learned Advocate General is a part, as per the Constitution of India. Accordingly, the Revenue Secretary shall appear in person to explain her conduct on 9.6.2008. The learned Government Pleader shall inform the concerned Secretary about this order."
2. The relevant portions of the review petition are extracted below:
"3. The writ petition No. WP(C) 16363/2008 came up for admission on 2.5.2008. The review petitioner was impleaded in a personal capacity as second respondent. This writ petition was taken up along with the WPC No. 16260/2008 and 16303/2008. In WP(C) No. 16260/2008 filed on 30.5.2008 prayer was to interdict the Government from implementing the decision allegedly taken pursuant to the show cause notice issued on 26.11.2007. That writ petition No. WP (C) 16260/2008, it appears was sought to be moved by the petitioners therein on 31.5.2008 which was a Saturday, on which day there is no normal sitting of this Honourable Court. It is learnt that the Honourable Judge having jurisdiction to hear the matter had some inconvenience. Therefore, the writ petition was not moved on that day. It appears that since the writ petitioner expressed urgency in the matter, the Honourable Judge required the Registrar of this Honourable court to find out from the learned Advocate General, r.p.590/08 3 whether action, if any as apprehended by the writ petitioners could be delayed till Monday.
4. It is now learnt that the learned Advocate General assured the Registrar of this Honourable Court that he would instruct the Government to defer any action till Monday. Accordingly, the WP No. 16260/2008 was listed for admission on Monday.
5. In WP(C) No. 16260/2008 the Government of Kerala was the sole respondent represented by the Revenue Secretary. The Council of Ministers met on 31.5.2008 and decided to reject the explanation given by the Trivandrum Golf Club and decided to take over the premises of the Golf Club with immediate effect. The decision of the Council of Ministers was on the Forenoon of 31.5.2008.
6. At about 12.30 PM, when I was having a meeting with the Retired Justice Sri. Manoharan, who is advising the Government on certain land-related issues regarding Harrisom Malayalam Plantations, the review petitioner received a telephone call and the caller identified himself as Sri. D.Anil Kumar, Senior Government Pleader, High Court of Kerala. The review petitioner was informed that the Advocate General has required that the decision of the cabinet if any should not be given effect till Monday in view of the filing of a writ petition, which will be listed on Monday.
7. It is submitted that as per the Rules of Business as well as the circulars issued, the decision of the Council of Ministers has to be implemented within 48 hours after the decision of the Council of Ministers. True copies of the notes dated 20.5.2006 and 14.11.2006 issued by the respective Chief Secretaries are produced as Annexure I and II. As the Principal Secretary to the Department of Revenue, the review petitioner is directly responsible to implement the cabinet decision within 48 hours in view of Annexure I and II. Failure to act in accordance with Annexure I and II would be failure to discharge official responsibilities. In view of this, the review petitioner requested the caller of the phone to pass on the instructions in writing by FAX message. However, the caller did not commit himself to send the same nor did he refuse to do so. There was no further information till 8.30 PM on 31.5.2008.
8. In the meantime, the decision of the Council of Ministers was made available to the review petitioner. At about 4 PM, the review petitioner passed order giving effect to the decision of the cabinet. At about 8.30 PM the review petitioner received a copy of note from the Law Secretary through the Chief Secretary saying that this Honourable Court has issued oral direction that there should not be eviction till r.p.590/08 4 Monday. By that time, the order had been signed by the review petitioner and issued.
9. On receipt of the note from the Law Secretary, I contacted the Honourable Minister for Revenue and informed him of the note. The Honourable Minister who was not in station informed me that the Cabinet decision has to be given effect to unless there is order from this Honourable Court or a written message from the Learned Advocate General.
10. On 2.6.2008 when the writ petition came up for admission before this Honourable Court, the concerned Government Pleader was not able to place these facts before this Honourable Court, since he did not contact me or got instructions. Had the Government Pleader got in touch with me and received true facts nor referred to the note faxed to the Advocate General on the same day morning he could have appraised this Honourable Court of the true state of affairs.
11. It is respectfully submitted that the Learned Advocate General neither contacted me over phone or his office issued any written instructions in this regard. Immediately on coming to know the orders of the Honourable court passed in 2.6.2008, the review petitioner had taken emergent action and restored the property to the Trivandrum, Golf Club on 3.6.2008 in compliance with the orders of this Honourable Court.
12. It is in the above circumstances the order, which is sought to be reviewed, was occasion to be rendered.
13. In the above circumstances, it is just and expedient that this Honourable Court may be pleased to review the order to the extent that it directs my personal appearance before this Honourable Court on 9.6.2008 for the following reasons among other.
GROUNDS
1. The order that is sought to be reviewed was passed without considering the actual and true state of affairs.
2. The review petitioner has highest regard of this Honourable Court and is ready and willing to comply with the orders of this Honourable Court.
3. The impugned order was passed ex-parte since the actual and true facts was not brought to the notice of this Honourable Court at the time of passing of the order.
r.p.590/08 5
4. As the review petitioner is bound to implement the decision of the cabinet within 48 hours and since there was no order of stay from this Honourable Court, the review petitioner was duty bound to comply with the Annexure I and II.
5. Had the Office of the Advocate General informed me in writing or by FAX message of such as order by this Honourable Court I would not have issued the order based on the decisions of the Council of Ministers. The Learned Advocate General or the Government Pleader had not sought nor taken any instructions from the Government in Revenue Department on the 31st of May 2008.
6. The review petitioner has acted with full bonafides and with the sole purpose of protecting the interest of the State. As the custodian of the state property, the Principal Secretary, Department of Revenue, is bound to implement the decision of the Council of Ministers, especially for recovering the land of more than 25 acres in Thiruvananthapuram city. Every act done by me is in good faith to protect Government interest.
7. The review petitioner has not committed any willful disobedience or neglect in this matter.
Hence it is humbly prayed that
1. This Honourable Court may be pleased to review the order dated 2.6.2008 in WPC 16363 of 2008 to the extent that it directs the personal appearance of the review petitioner."
3. From ground 5 of the review petition it is clear that the petitioner does not dispute the fact that she ought to have postponed passing of the order dated 31.5.2008, which she passed. Her only explanation is that "had the office of the Advocate General informed her in writing or by fax message of such an order by this Court, she would not have issued the order based on the decisions of the Counsel of Ministers". Therefore, I r.p.590/08 6 need only consider whether the petitioner has justifiable reasons for passing order contrary to the instruction of the Advocate General.
4. Before going into the contentions of the parties, I would like to refer to two legal aspects which have bearing on the issues involved in the case. First is regarding how far the assurance given by the Advocate General to the Court would be binding on the Government and the second is the difficulties both this court and advocates appearing before this court would face if a party to a case is allowed to take a stand that he/she did not comply with instructions given by his/her advocate as per directions of the Court, since no written instructions were given by the advocate.
5. The office of the Advocate General is a Constitutional Office. He is appointed by the Governor of the State as per the mandate in Article 165 of the Constitution of India. The said Article reads thus:
"165. Advocate-General for the State.- (1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State.
(2) It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any r.p.590/08 7 other law for the time being in force.
(3) The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine."
The office of the Advocate General is an exalted one and he is the Supreme Law Officer of the State. The Advocate General is conferred the right to audience before the Legislature of the State under Article 177 of the Constitution of India. The importance of the office of the Advocate General and the binding nature of his words in Court on the Government has been emphasised by the Supreme Court and a Division Bench of this Court. On that point, the Supreme Court has in Periyar and Pareekanni Rubbers Ltd. v. State of Kerala [(1991) 4 Supreme Court Cases 195] held thus:
"Any concession made by the Government Pleader in the trial court cannot bind the Government as it is obviously, always unsafe to rely on the wrong or erroneous or wanton concession made by the counsel appearing for the State unless it is in writing on instructions from the responsible officer. Otherwise it would place undue and needless heavy burden on the public exchequer. But the same yardstick cannot be applied when the Advocate General has made a statement across the bar since the Advocate General makes the statement with all responsibility."
(Emphasis supplied) A Division Bench of this Court has in Chacko v. State of Kerala [1998(1) KLT 907] held thus on the same point:
r.p.590/08 8
"........ But at the same time we cannot ignore the fact that the Advocate General is appointed by the Governor of the State under Article 165 of the Constitution of India and he is a Constitutional functionary whose words are binding on the Government .........."
After holding so, to emphasise the same, the Division Bench referred to the decision of the Supreme Court in Joginder Singh Wasu v. State of Punjab [(1994) 1 SCC 184] quoting the very same words quoted above in Periyar and Pareekanni's case (Supra). Therefore, the binding nature of the words of the Advocate General spoken to the Court, on the Government need not be over emphasised. Here for avoiding a special sitting of the Court, due to inconvenience of the concerned judge, the Advocate General assured the High Court that he would instruct the Government to postpone the decision till 2.6.2008. The Government, who is represented by the petitioner in the review petition, had a solemn duty to abide by that instruction of the Advocate General, whatever the circumstances may have been. Therefore, what the petitioner has done is clearly not correct. Whether it was culpable or not, I shall discuss later after dealing with her explanations for doing what she herself admits she would not have done had the Advocate General given the instruction in writing or by fax message.
r.p.590/08 9
6. This court often passes orders in open court and at times directs the advocate to see that their clients do not continue the acts impugned in the case for the time being. When orders are passed in open court which is orally communicated to the client by the advocate, if the client is allowed to take the stand that he/she did not abide by the instruction since he/she has not been informed of the same in writing by the Advocate, the same would result in eroding the very credibility of the profession. In cases where a prima facie case is found by the Court, without passing interim orders, advocates especially the Government Pleaders are at times directed not to proceed with the proposed action until the next posting date, primarily to avoid an embarrassment to the party, particularly the State, who is given an opportunity to offset the prima facie case made out by the other party, by obtaining instructions and arguing the matter in detail. If parties, particularly the State, would not honour such commitment made by counsel, it would be very difficult for counsel to function effectively, especially the Advocate General's Office, which represents the largest litigant in this Court. The State, as a party to a case just like any other party, is also bound to follow r.p.590/08 10 the time honoured conventions and practices followed in this Court. Therefore, it is necessary to curb such tendencies effectively, which was the very purpose of initiating the proceedings, which are sought to be reviewed in this review petition.
7. The petitioner herself admits that at about 12.30 p.m. on 31.5.2008, she received a telephone call and "the caller identified himself as Sri. D. Anil Kumar, Senior Government Pleader, High Court of Kerala", informing her that the Advocate General required that the decision of the Cabinet, if any should not be given effect to till Monday in view of filing a writ petition, which is to be listed on Monday. The petitioner again states that since she is bound to give effect to the Cabinet decision taken in the forenoon of 31.5.2008 within 48 hours, she "requested the caller of the phone to pass on the instructions in writing by FAX message", to which "the caller did not commit himself to send the same nor did he refuse to do so." Since the language used by the petitioner to refer to the caller conveyed the meaning that Sri. D. Anil Kumar, Senior Government Pleader was a stranger to the petitioner, when the review petition came up for admission on r.p.590/08 11 6.6.2008, I wanted to know whether the petitioner knows the said Sri.D.Anil Kumar. As is usually done in Court I asked 'Don't you know Sri.D.Anil Kumar?". The Senior Advocate appearing for the petitioner promptly and firmly said, "No". Then I explained to him that when several of the Munnar Demolition cases came before me for hearing, several of the orders of the petitioner herself were ably defended by the said Sri. D. Anil Kumar, Senior Government Pleader himself and therefore it is difficult to believe the statement that the petitioner does not know the said Sri.D.Anil Kumar. I also added that in some of those cases directions issued by the Court orally communicated by the very same Government Pleader were promptly complied with. To this observation of the Court, the Senior Advocate did not respond. When this review petition came up for hearing on 8.7.2008, I again asked the Advocate, 'Do you still maintain that you do not know Sri. D. Anil kumar?'. To this the Senior Advocate expressed surprise and replied that what he meant the other day was that he (the advocate) did not know the Government Pleader and not the petitioner. He further added that as the Secretary of the Revenue Department, the cases r.p.590/08 12 relating to which are being handled by Sri. D.Anil Kumar, she cannot say that she does not know him. He also added that when the next day he read in the papers that he told the Court that the petitioner did not know Sri.D.Anilkumar he was surprised. But he still did not explain why while referring to the same person, in the review petition, language which conveyed an impression to the contrary, was used. Since the explanation came from a Senior Advocate I left it at that. But I cannot help having the feeling that by using such language, the petitioner wanted to convey to this Court, the false impression that the petitioner did not know the "caller" and therefore she insisted on putting the message in writing, which itself suggests that she is trying to wriggle out of her misdoing by a false pretense.
8. Next I shall deal with the explanation furnished in paragraph 7 of the review petition to the effect that as per the Rules of Business as well as circulars issued, namely Annexures I and II, she was bound to implement the Cabinet decision within 48 hours. On 6.6.2008, I wanted the Advocate to show me the Rules of Business, which he promised to produce. When the matter was heard on 8.7.2008, again I wanted the Advocate to r.p.590/08 13 show me the Rules of Business which stipulated that Cabinet decision should be implemented within 48 hours. He thereafter admitted that the Rules of Business do not stipulate so, but Annexures I and II circulars do. Again the petitioner by stating in the review petition that the Rules of the Business stipulated so, approached this Court with false averment. Another false averment to be noted is that in paragraph 5 of the review petition, the petitioner states that "the Council of Ministers met on 31.5.2008 and decided to reject the explanation given by the Trivandrum Golf Club and decided to take over the premises of the Golf Club with immediate effect". In Ext.R1(i) minutes of the Cabinet meeting dated 31.5.2008, there is no mention of rejection of the explanation given by the Trivandrum Golf Club, although the other parts of the statement find a place therein.
9. In any event, in ground 5 of the review petition the petitioner states thus:
"5. Had the Office of the Advocate General informed me in writing or by FAX message of such as order by this Honourable Court I would not have issued the order based on the decisions of the Council of Ministers. The Learned Advocate General or the Government Pleader had not sought nor taken any instructions from the Government in Revenue Department on the 31st of May 2008."
That averment would very well go to show that had the Advocate r.p.590/08 14 General informed her in writing about the direction of this Court, she would not have issued the orders, based on the decisions of the Council of Ministers. Therefore, it was not the Cabinet decision which stood in the way of the complying with the instructions of the Advocate General, but only the lack of written instructions from the Advocate General. Therefore, the explanation in paragraph 7 of the statement of facts in the review petition that she was forced to pass orders because of the Rules of Business and Annexures I and II circulars and the averment in ground 5 thereof are mutually contradictory. This also shows the lack of bona fides on the part of the petitioner in putting forward reasons in justification of her conduct.
10. I have perused Annexures I and II which although were stated to be produced along with the Review Petition filed on 5.6.2008 was actually filed along with I.A. No.289 of 2008 on 6.6.2008. The relevant portion of Annexure I are paragraphs 1 and 2, which read thus:
"1) As per the existing instructions orders are required to be issued on Council of Ministers' decisions within 48 hours. All Secretaries are requested to kindly ensure observing the above time limit in issue of orders within 48 hours of the time of receipt of the proceedings.
2) Deputy Secretary, GA(SC) Dept. would please submit a r.p.590/08 15 note to Chief Secretary within one hour of the expiry of 48 hours time-
limit, about Council of Ministers' decision on which GOs have not been issued".
Of course these refer to the necessity of issuing orders on Council of Ministers' decisions within 48 hours. Annexure II relates to implementation of such decision, which reads thus:
"As per the existing instructions, orders are to be issued on the decisions taken in the meetings of the Council of Ministers, within 48 hours of the time of receipt of the proceedings. Instructions have been issued time and again to adhere to the time limit.
Implementation of the orders is also equally important. Instances have come to the notice where there has been inordinate delay in implementing the Council decisions even though orders are issued within the stipulated time. Issue of order is not enough but it should be followed up till the implementation is complete. All Secretaries are therefore requested to watch the prompt implementation of the decisions personally and to ensure their timely implementation".
The same does not speak of implementation within any time frame. These circulars cannot override the direction of this Court and the instructions issued to the Government by the Advocate General. Apart from that assuming that she had to pass orders within 48 hours, time was still there at least till noon on 2.6.2008 the date on which the writ petition was to come up for admission. The petitioner could have kept the order ready and signed the same within the said time limit itself, after ascertaining the outcome of the writ petition for not taking which course no r.p.590/08 16 explanation is offered. In this connection it is relevant to note that the proceedings started by issue of a show cause notice dated 26.11.2007. For six months there was no urgency whatever for completing the proceedings pursuant to the same. Still on 31.5.2008, the petitioner found herself compelled not only to pass orders pursuant thereto, but also to implement the same within less than ten hours, despite instruction from the Advocate General not to do so, which were conveyed to the petitioner much before she passed orders, that too, for resuming a golf course, which the Government intended to maintain as it is even after resumption which is clear from the minutes of the Cabinet meeting on 31.5.2008, produced as Ext.R1(i) along with the counter affidavit filed on behalf of the Revenue Secretary in the writ petition. There is no case for the petitioner that unless the Golf Club is not so resumed with such urgency any irreparable loss or injury would be caused to the State or damage to the Golf Club. Of course the counsel for the petitioner would try to explain that once the order is passed, the implementation part is with the Collector and the Revenue Officials for whose conduct she is not responsible, which is another false pretence. r.p.590/08 17 In the writ petition the petitioner is representing the Government of Kerala, who includes the Collector and the Revenue Officials also. Therefore she is responsible for their action also. Further without the petitioner forwarding the order to the Collector for implementation, he and his officers could not have taken any action to implement the same. Lack of bona fides is writ large on not only her action, but also on her attempts to justify the same.
11. The instructions of the Advocate General on the direction of this Court were admittedly conveyed to the petitioner, not only by Senior Government Pleader, Sri.D.Anilkumar, who was a 'caller identifying himself as so', but also the Law Secretary and the Chief Secretary. Her only explanation is that the same was not given in writing. But an affidavit is filed on behalf of the 6th respondent in the Review Petition, which is the State of Kerala, represented by the Chief Secretary, sworn to by an Under Secretary of the Law Department, stating thus in paragraph 4:
"4. It is stated in the review petition and the affidavit referred to above that when Sri.D.Anil Kumar, Senior Government Pleader informed to the Review Petitioner that the Advocate General had required that the decision of the cabinet, if any, should not be given effect till Monday, in view of the filing of the writ petition, the review petitioner wanted Sri.D.Anil Kumar, Senior Government Pleader to give this intimation in writing. It is submitted that when Sri.D.Anil Kumar, r.p.590/08 18 Senior Government Pleader contacted the Review Petitioner; the review petitioner did not ask him to give it in writing. This statement is made as per the information given by Sri.D.Anil Kumar. In fact she stated that she could not comply with the direction issued by the Advocate General in view of the decision of the Cabinet. It is further stated in the review petition that at about 8.30 PM the review petitioner received a copy of the note from the Law Secretary through the Chief Secretary saying that this Honourable Court had issued oral direction that there should not be eviction till Monday. It is submitted that this is also an incorrect statement. When the Advocate General contacted the Law Secretary, the Law Secretary was attending a meeting with Honourable Justice Sri.L.Manoharan. In the said meeting the review petitioner was also present. On getting the information from the Advocate General, the Law Secretary on the spot conveyed the message of the Advocate General to the review petitioner. Then the review petitioner wanted to get it in writing. On reaching the Chamber, the Law Secretary prepared a note and it was served through Peon Sri.K.K.Shajulal at the Office of the Revenue Secretary which was acknowledged in the Transit register by the personal staff of the Revenue Secretary at about 3 PM. The Law Secretary forwarded the copy of the note to the Chief Secretary also. The copy of the note was also faxed to the office of the Advocate General. It is seen faxed by 3.53 PM. A true copy of the note faxed to the office of Advocate General is produced herewith and marked a Annexure -I. A true copy of the letter dated 11.6.2008 written by the Law Secretary to the Advocate General explaining the above facts is produced herewith and marked as Annexure -II. At 4 PM the Law Secretary had a meeting with the Honourable Minister for Law and Parliamentary Affairs in which the Advocate General and the Chief Secretary also participated. At the venue of the meeting, the Law Secretary had informed the Advocate General that the note given by him was served to the review petitioner. The note prepared by the Law Secretary which was forwarded to the Chief Secretary was served in the office of the review petitioner before 6.30 PM. It is submitted that the statement made by the review petitioner that the note from the Law Secretary reached the review petitioner by 8.30 PM is incorrect."
(Emphasis supplied) Of course, the petitioner would seriously question the competence of an Under Secretary to depose to the facts not in his personal knowledge, quoting Rule 82 of the Rules of the High Court of Kerala and Rule 42 of the Civil Rules of Practice, little r.p.590/08 19 realising that facts within her knowledge also were sworn to by a Joint Secretary of the Department of Revenue in defence of the order passed by the petitioner, in the counter affidavit filed in the main writ petitions on behalf of the State of Kerala and that the review petition was not supported by an affidavit of the petitioner but was signed only by her advocate. She counters the averments in the counter affidavit of the 6th respondent herein, quoted above, by filing an affidavit dated 17.6.2008, in paragraphs 3 and 4 of which she states thus:
"3) I emphatically deny the allegation that there was no request by me to the Senior Government Pleader to give written intimation of the instruction of the Advocate General. I reiterate my submissions made in the Review Petition as also in the Affidavit sworn before this Hon'ble Court in this regard. The Averments in paragraph 4 of the Affidavit to the extent that there was no request by me for a written intimation of the Advocate General's instruction is false. It is not known how could an Under Secretary in the Department of Law, who has no personal knowledge of the contents of the conversation between myself and the Senior Government Pleader could swear in the affidavit controverting my averments. It is specifically submitted that an affidavit on behalf of the 6th respondent cannot make an assertion on the basis of a hearsay.
4) I refute the allegation that the note by the Law Secretary was seen by me at 3.00 PM. I was away from my office and came back after my work at about 8.30 PM. Meanwhile I prepared the order and signed the same in the chamber of the Deputy Secretary, Revenue which is attached to the office of the Hon'ble Minister for Revenue. It was sent for issuance in the usual course. Only then I reached my office at about 8.30 PM, I came to know of the note of the Law Secretary. I have not stated anywhere in the Review Petition or in the affidavit filed subsequently that the note of the Law Secretary reached me only by 8.30 PM. Apparently the affidavit is sworn on the mistaken impression that I have a case that the Law Secretary's note was r.p.590/08 20 actually forwarded to my office only by 8.30 PM. I make it clear that I have only averred that I came to know of the note when I saw it on reaching back to my office at about 8.30 PM."
As far as the facts relating to the petitioner's telephone conversion with Sri.D.Anilkumar are concerned, I note that the affidavit of the Under Secretary is attested by Sri.D.Anilkumar himself. As far as the note of the Law Secretary is concerned, she does not deny the factual averments. She only states that the note of the Law Secretary reached her only by 8.30 p.m. She also categorically states that she has not stated anywhere that the note of the Law Secretary reached her only at 8.30 p.m. That would mean that the note of the Law Secretary did reach her office by 4.00 p.m., but at that time she was away from her office and came back only at 8.30 p.m. when only she saw the note. (Here it is pertinent to note that in the review petition there is no mention that her office had received a note from the Law Secretary. The impression one would get from the review petition is that the note reached her office at 8.30 p.m. only. In fact what she says in the review petition is not about the note from the Law Secretary, but a copy of a note from the Law Secretary forwarded to her by the Chief Secretary. The review petition is completely r.p.590/08 21 silent about the note from the Law Secretary directly forwarded to the petitioner's office.). According to her, during the said time she was preparing the order to be passed pursuant to the Cabinet decision in some other office. It beats me as to why such an important order should be prepared in another office rather than her own office where every information relating to the matter and her own staff is at her back and call, if it is not to dodge the receipt of the written instruction she herself specifically requested for, especially when the two offices are, as admitted by the counsel for the petitioner, on a query from the Court, not far apart. According to her, she wanted both Sri.D.Anilkumar and the Law Secretary to give the instruction of the Advocate General in writing. She has no case that both told her that it would not be so given. Therefore, normally, if her intentions were bona fide, she, while leaving her office knowing very well that she would be away for some time, would certainly have left word with her personal staff to convey any such written information to wherever she was, immediately on receipt. At least she would have contacted her office to ascertain whether the same was received. She certainly has not done that. To a question put by r.p.590/08 22 me to her counsel in this regard, he answered that she could have done the same, but she didn't, by oversight. In the review petition the petitioner states that the Minister, who was not in station, told her that the Cabinet decision had to be given effect unless there was a Court order or a written message from the Advocate General. Surprisingly she did not want that to be conveyed by a written message. The irresistible conclusion from the circumstances is that she deliberately wanted to avoid getting a written message in this regard so as to have an excuse to pass the order despite the instruction from the Advocate General.
12. The petitioner tried to pick holes in the case in the counter affidavit of the 6th respondent that she did not tell Sri.Anilkumar to give the instruction of the Advocate General in writing by quoting the following sentences from Annexure II of the counter affidavit.
"I would like to inform that at about 1 p.m. on 31.5.2008 when the Advocate General, who was on journey informed over phone, I was sitting alongwith the Revenue Secretary for a discussion with the Hon'ble Mr.Justice L.Manoharan (Rtd.). On the spot I informed the message of the Advocate General to the Revenue Secretary. In the meantime the Revenue Secretary had received the message from Sri.Anilkumar, the Govt. Pleader. Since she responded that unless she gets a direction in writing she would proceed with eviction, I thought of giving the direction of the Advocate General in writing."
When I pointed out to the learned senior counsel appearing for r.p.590/08 23 the petitioner that in the circumstances it should be read that her response referred to therein was to the informing of the message of the Advocate General by the Law Secretary to the petitioner and not to the response to the message from Sri.Anilkumar, since Law Secretary was not privy to the telephone conversation between the petitioner and Sri.Anilkumar, he responded by flatly saying that my reading of Annexure II is incorrect. Anyway that contention, even if accepted, does not prove the case of the petitioner to any extent.
13. Thereafter, the counsel for the petitioner submitted that it was not right on the part of this Court to issue an oral direction and to direct the petitioner to appear in person, both of which are prohibited by the Supreme Court in the decisions of Samarias Trading Co. Pvt. Ltd v. Samuel and Others [(1984) 4 SCC 666] and State of Gujarat v. Turbali G.Hirani [2007(4) KLT 656 (SC)] respectively. I am of opinion that reliance on both decisions is misplaced. I have considered the applicability of those decisions to the facts of this case. In Samarias Trading Co.'s case, the Supreme Court was dealing with a non-speaking written interim order, in a writ petition yet to be filed, on an oral r.p.590/08 24 prayer made by an advocate on behalf of his client, with an undertaking that the writ petition would be filed within a few days, which only was deprecated by the High Court. But here there was already a writ petition filed, papers of which were already sent to the Judge concerned, the same having been listed for admission on 2.6.2008, which Judge had already read the same at home. Apprehending passing of orders before the writ petition comes up for admission, the petitioner moved the Senior-most Judge in-charge of the functions of the Chief Justice in his absence, for hearing of the writ petition for interim orders on Saturday, which was not a sitting day, which the Senior Judge permitted subject to the convenience of the Judge concerned, who because of personal inconvenience directed the Registry to inform the Advocate General who in turn undertook to instruct the Government, which is a totally different situation. In fact the very purpose of the exercise was to avoid unnecessary embarrassment to the Government, which in fact happened because of the irresponsible action of the petitioner. Had the petitioner abided by the instruction of the Advocate General, the maximum that would have happened to the State was to suffer a r.p.590/08 25 stay order of further proceedings pursuant to the show cause notice pending disposal of the writ petition. As a result of the action of the petitioner, the Government had to suffer the further embarrassment of returning the resumed Golf Club after takeover pursuant to interim orders passed when the first writ petition and the subsequent writ petition filed challenging the orders passed by the Government later came up for admission on 2.6.2008. In Turbali G.Hirani's case, (supra) it was only held that summoning of high officials to Court should be done only in very rare and exceptional case. I am of opinion that in the circumstances of this case, this is an eminently fit case not only for summoning the petitioner but also to take further proceedings for her insolent act in trying to overreach a court of law, that too, on false pretences.
14. When the review petition came up on 6.6.2008, I had told the counsel for the petitioner that the contentions of the petitioner are not at all convincing and are only an eye wash. I also expressed the view that rather than trying to justify her action on such false pretences, the petitioner should have filed an affidavit of apology. The counsel for the petitioner submitted that r.p.590/08 26 the petitioner would file one and took time to file. It is in view of the said submission that I had dispensed with personal appearance of the petitioner for the time being. But what the petitioner chose to do was to file an affidavit again justifying her action reiterating some of the grounds in the review petition with a tail piece as follows:
"3. There was no intentional disregard to the instruction of the Advocate General. However an impression to that effect was created unintentionally. I deeply and sincerely regret this. I reiterate that I have the highest regard for this Hon'ble Court."
When the review petition was taken up on 10.6.2008 the counsel was told that since she still chose to justify her action, the same cannot be accepted. But the counsel did not offer to modify the affidavit. Instead the counsel took the further stand that this is a matter between the Advocate General and the petitioner, and in respect of the same, there is no justification for this Court to initiate proceedings. Therefore, it was decided to hear the review petition on merits and pass orders. The said attitude of the petitioner also disclosed her recalcitrant and unrepentant state of mind.
15. The counsel for the petitioner then submitted that it was in any event improper on the part of this Court to even r.p.590/08 27 entertain the challenge against a show cause notice, let alone directing the Advocate General to postpone passing orders on the show cause notice. This was on the premise that W.P(C). No.16260/2008 was filed challenging the show cause notice based on which the later order was passed by the petitioner. The counsel submitted that ordinarily this Court would have thrown out a writ petition challenging a show cause notice at the threshold itself directing the party to reply to the notice and to challenge the order passed pursuant thereto. This was, as pointed out by the counsel for the petitioner in that writ petition, an erroneous premise because the prayers in the writ petition were:
"a) to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent to conduct on rehearing in the matter of Ext.P3 show cause notice after supplying to the petitioner all the details on the basis of which the above notice was issued and the details with respect to the specific charges in respect of which explanation is sought for from the petitioner.
b) To pass an order directing the respondent not to implement the decision taken with respect to Ext.P3 show cause notice, if it goes against the petitioner till the expiry of the period to be fixed by this Hon'ble Court.
c) to issue such other appropriate writ, order or direction as may be prayed for and which this Hon'ble Court may deem fit to grant under the circumstances of the case."
Further, as pointed out by me in the interim order passed on r.p.590/08 28 2.6.2008, the show cause notice did not specifically set out the grounds on which the proposed action was to be taken for disclosing which there was a specific request from the Golf Club, without disclosing which no person could have given a meaningful reply to such a show cause notice, which was the very ground on which the interim order dated 2.6.2008 was given. Thus when the justifications put forward by the petitioner were found to have no legs to stand, the petitioner tried to find fault with the Court on totally misconceived grounds, which also would go to show the unrepentant attitude of the petitioner and the hollowness of her purported apology. Her attitude to the Court also leaves much to be desired.
16. From the review petition itself, it is abundantly clear that the petitioner knew very well that she ought not to have passed the order after the Advocate General's instruction was conveyed to her and that the petitioner passed the orders deliberately since she wanted to pass that order at any costs before the writ petition comes up for admission. It is equally clear from the review petition itself, from where she got the inspiration to do so. In paragraph 9 of the statement of facts of r.p.590/08 29 the review petition, she states thus:
"9. On receipt of the note from the Law Secretary, I contacted the Honourable Minister for Revenue and informed him of the note. The Honourable Minister who was not in Station informed me that the Cabinet decision has to be given effect to unless there is order from this Honourable Court or a written message from the Learned Advocate General."
It is clear from the above that she did what she did on the bidding of the Honourable Minister. The loyalty of the petitioner to the Minister is certainly to be appreciated. But, that cannot be at the expense of her bounden duty towards the Advocate General and this Court. The petitioner, with her decades of experience in the Administrative Service, should have known that what she was doing was improper and amounts to disrespect not only to this Court and the Advocate General, but also to the Law Secretary and the Chief Secretary who had advised her to refrain from passing orders till 2-6-2008. It was her duty to advise the Honourable Minister, who appears to have little experience in such matters against it. One could have understood if the petitioner had first advised the Honourable Minister that such an action would be improper and on his insistence she had proceeded. But, it was not so. She wanted to be more loyal than the King. Not only did she go ahead and pass orders against the r.p.590/08 30 instructions of the Advocate General, but she went further and saw to it that within another hour of her getting the note from the Law Secretary her order was also implemented with utmost expedition. She was either shortsighted not to see that even when it was as directed by the Minister, she alone had to shoulder the blame for the action and not the Minister. I am of opinion that officers like the petitioner who do not have the courage of conviction to tell the Minister that he was wrong, is the bane of the Indian Administrative Service. It is the duty of a Government Secretary to advise the Minister correctly, failure to do which amounts to abdication of her duty. She had a classic example before her of somebody who had acquitted herself honourably in the very recent past whom she could have emulated. Government Secretaries should know their priorities in the correct order, and shall not blindly obey orders even when such orders are wrong and they know it to be so. The petitioner should have realised that it was in her interest also not to speak of the public whom she serves, to uphold the majesty of the judicial system, since she also has nowhere else to go when she is wronged by the very same persons whom she chose to please r.p.590/08 31 by acting on their bidding. If the Government Secretaries had the courage of conviction to stand up to the higher ups, our State would have had a far better administrative machinery than what is obtaining now. History shows that whenever we had such kind of officers we had efficient administration also. On the whole, I feel pity not only for this very 'faithful' Government servant but also for ourselves for being doomed to suffer such administration.
17. It is abundantly clear that the petitioner tried to justify her action by false averments. Of course she did not support her review petition with an affidavit, and the review petition itself is signed by her advocate and not herself. But she did file two affidavits, one challenging the affidavit of the Under Secretary of the Law Department and another purporting to be an apology in which she supports the averments in the review petition. The Supreme Court has, in the decision in Dhananjaya Sharma v. State of Haryana [(1995) 3 SCC 757], held that the swearing of false affidavits in judicial proceedings not only has the tendency of causing obstruction in the due course of judicial proceedings but also has the tendency to impede, obstruct and interfere with the administration of justice, and therefore, amounts to contempt r.p.590/08 32 of court. Petitioner has not, in any event, approached this Court with clean hands. She tried to mislead this Court with half truths and without saying the full truth.
18. Although the petitioner deserves to be dealt with very severely for her misdemeanour, the fact that she was acting at the behest of the Minister prompts me to take a lenient view in the matter. Therefore, I drop further proceedings with a strong reprimand to the petitioner, reminding her that another of her indiscretion may not qualify for the same benevolence.
The proceedings initiated as per order dated 2-6-2008 and the Review Petition are disposed of as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge