Central Administrative Tribunal - Delhi
S K Srivastava vs Union Of India & Others on 9 April, 2010
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.3661/2009 New Delhi, this the 9th day of April 2010 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) S K Srivastava ..Applicant (By Advocate: Shri S K Gupta) Versus Union of India & others ..Respondents (By Shri Parag P Tripathi, ASG and Shri V S R Krishna and Shri R N Singh, Advocates for official respondents along with him None for private respondents) Order on preliminary issue Shri Shanker Raju:
On liberty in CP-416/2009 and CP-421/2009 in OA-718/2007, applicant, by virtue of this OA, has impugned respondents order dated 22.10.2009 deeming re-commencement of fresh suspension on 8.11.2007 and extension on review on 24.3.2008, 19.9.2008, 13.3.2009 and 8.9.2009. Also assailed is an order passed on 8.11.2007 where the continued suspension of the applicant has been recommended.
2. Applicant, in this OA, apart from official respondents, has impleaded the private respondents from nos. 5 to 12 and raised a background as to personal malafides leveling variety of allegations to co-relate it with his victimization by virtue of the orders impugned herein.
2. Applicant has also filed MA-739/2010 for summoning the departmental records from the official respondents kept in their custody. This MA was allowed on 26.3.2010 and respondents have been directed to produce the departmental records. Meanwhile, reply has been filed by the official respondents and despite service of notice on private respondents, no reply has come forth.
4. Shri Parag P Tripathi, learned ASG, at the outset, raises a preliminary objection based on Order VI Rule 16 of CPC by stating that the allegations leveled by the applicant in this OA are scurrilous, insinuating, derogatory and intemperate and has no relevance with the cause of action. In this backdrop, it is stated that there has been a clear abuse of process of Court by the applicant, which entails dismissal of the OA.
5. Learned ASG in a background of decision on a PIL filed by the applicant in WP (C) No.12609/2009 decided on 16.11.2009 stated that for the same reasons where the applicant has made reckless and scandalous allegations against various officials of Income Tax Department not only the writ petition was dismissed but also a cost was imposed.
6. Learned ASG relies upon the decision of Apex Court in K.K. Modi v. K.N. Modi & others, (1998) 3 SCC 573 to propagate that frivolous or vexatious proceedings may also amount to an abuse of the process of Court especially where the proceedings are absolutely groundless.
6. By referring to the paras, 1.45, 1.46, 1.58 to 1.61, 4.6, 4.14 (K&L), 4.21 and 4.24, it is stated that the allegations are baseless and applicant having tried to subvert discipline being provided in a disciplinary proceeding, learned ASG refers to the counter reply where all the allegations leveled have been denied to be false and untrue with a view to harass other officials. It is further stated that in the application objectionable, scurrilous, insinuating, derogatory, defamatory and intemperate language in tone and tenor has been used against the lady officer, which has been done to tarnish the image of others.
7. On merits as well, it is stated that applicant has no valid claim, as the interim relief granted by the Tribunal has been stayed by the High Court. As such, the OA is liable to be dismissed on this short ground.
8. Shri S.K. Gupta, learned counsel for applicant vehemently opposed the contentions of official respondents and while referring to K.K. Modis case (supra), it is stated that an abuse of process of Court would be legally inferred only if the Court is satisfied that there is no likelihood of the suit succeeded.
9. Learned counsel states that once the allegations leveled by the applicant, which have been borne out of the official records and despite application of the production of departmental records being allowed by this Tribunal, non-submission of the record is a tactic adopted by the respondents to avoid producing these records, which would establish the allegations of the applicant and as a short cut, a technical plea has been raised, which when decided would amount to prejudging the issue when the matter regarding frivolous allegations is yet to be ascertained and determined by the Court, the aforesaid objection is pre-mature.
10. Learned counsel for applicant further states with a background that in earlier OA-718/2007 when the records were produced by the respondents, the suspension resorted to on a contemplated proceeding on serious charges of deflection of amount and corruption, which has not borne out from the reply of the official respondents where what to talk of any deflection of amount and corruption charges, the inquiry has been initiated without vigilance inquiry, which rules out any corruption angle in the case on a charge of defamation and causing aspersion on the character and conduct of a lady officer.
11. Learned counsel has further contended that once the official respondents themselves treated these allegations as a misconduct and an inquiry is being proceeded, the genuine grievance of the applicant regarding non-approved suspension from the competent authority, which is coram non judice, a strong case has been made out whereby the preliminary objection is secondary and would depend upon the outcome of the OA, which is yet to be arrived at.
12. While referring to paragraphs 1.16, 1.18, 1.34, 1.35, 1.45 and 1.49 of the reply, it is stated that applicant has raised not only the issue of a big scandal of deflection of money and misappropriation by the officers of Income Tax Department but also the involvement of vigilance officers, yet when no reply has been filed by the concerned against whom the allegations are leveled either denying or accepting, the same has an effect of admission in law. As such, the abuse of process of Court cannot be deemed in these circumstances.
13. Learned counsel states that retrospective suspension is admitted in the counter reply and while referring to certain proceeding as a backdrop, learned counsel has referred to the decision of Single Bench of the High Court in WP (C) No.7512/2007 decided on 30.11.2007 where a cost is imposed on the respondents where the allegations are leveled against Shri P.K. Mishra, DGIT (Vigl) & CVO, CBDT.
14. Further, learned counsel has relied upon the decision of High Court in WP (C) No.12609/2009 decided on 16.11.2009 whereby an important question of denial of withdrawal of allegations of sexual harassment made by the complainant or victim where the formal closure of inquiry against the applicant has been an issue.
15. Applicants learned counsel applies the doctrine of res ipsa loquitor by referring to the records stating that the charge of sexual harassment and depletion of amount, etc. have been raised with a basis and the record would substantiate it. Accordingly, it is stated that the mater be heard finally and as per the outcome the preliminary objection would be decided. He distinguishes the case laws cited by learned ASG.
16. We have heard the learned counsel for the parties at length on preliminary objection.
17. At the outset, in the practice and procedure before the judicial for a of an abuse of process, the following observations have been made by the Apex Court in Dalip Singh v. State of Uttar Pradesh & others, (2010) 2 SCC 114 1. For many centuries Indian society cherished two basic values of the i.e. satya (truth) and ahimsa (non-violence). Mahavir, Gautam Budha and Mahatama Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the Courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.
18. In K.K.Modis case (supra) on abuse of process of Court, the following observations, which are relevant, were issued by the Apex Court:-
40. Mr. Nariman, learned senior counsel for the appellants, however, has drawn our attention to paragraph 55 of the plaint. In paragraph 55 it is stated as follows :
"The plaintiff says and submits that as the said Ruling/Decision of the CMD, IFCI is an Arbitration Award within the meaning of the Arbitration Act, 1940, the legality and validity of the same can be questioned and a prayer can be made for setting aside the said award only in an arbitration petition filed under Section 33 of the Arbitration Act, 1940. The plaintiff is, therefore, filing along with the present suit an Arbitration Petition under the provisions of the Arbitration Act, challenging the legality and validity of the said award. However, the present suit is also being filed in respect of the actions of third parties in pursuance of and to give effect to the said Award. Further, in the event of it being contended by any of the defendants herein, or it being held by this Hon'ble Court for any reason that the said Ruling/Decision of the CMD, IFCI is not an Arbitration Award, the legality and validity of the said Ruling/Decision is also being challenged in the present suit."
41. He has submitted that in the event of it being held that Clause 9 of the Memorandum of Understanding is not an arbitration clause and the decision of the Chairman, IFCI, is not an award, it is open to the appellants to file a suit to challenge the decision. This is the reason why along with the arbitration petition, a suit has also been filed as an alternative method of challenging the decision in the event of it being held that the decision of the Chairman and Managing Director, IFCI, is not an award. He has contended that filing a separate proceeding in this context cannot be considered as an abuse of the process of the Court; and the learned single Judge was not right in striking out the plaint under Order 6, Rule 16 of the Code of Civil Procedure.
42. Under Order 6, Rule 16, the Court may, at any stage of the proceeding, order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the Court. Mulla in his treatise on the Code of Civil Procedure, (15th Edition, Volume II, page 1179, note 7) has stated that power under clause (c) of Order 6, Rule 16 of the Code is confined to cases where the abuse of the process of the Court is manifest from the pleadings; and that this power is unlike the power under Section 151 whereunder Courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process. In the present case the High Court has held the suit to be an abuse of the process of Court on the basis of what is stated in the plaint.
43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraph 18/19/33 (page 344) explains the phrase "abuse of the process of the Court" thus : "This terms connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. . . . . . . . . The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material."
44. One of the examples cited as an abuse of the process of Court is re-litigation. It is an abuse of the process of the Court and contrary to justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may not be barred as res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of the Court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court. Frivolous or vexatious proceedings may also amount to an abuse of the process of Court especially where the proceedings are absolutely groundless. The Court then has the power to stop such proceedings summarily and prevent the time of the public and the Court from being wasted. Undoubtedly, it is a matter of Courts' discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The Court should also be satisfied that there is no chance of the suit succeeding.
19. Though, at the outset under the scheme of Administrative Tribunals Act, the Tribunal is not bound by the procedure laid down in Code of Civil Procedure but still is a Court as per the implication. However, the methodology has been laid separately for conduct of the business, yet the matters, which are not specifically enumerated and the situations covered for substantive procedure, a resort can always be made to the provisions of Code of Civil Procedure 1908. As per Order VI Rule 16 striking out pleadings, Court is at discretion at any stage of the proceedings to strike out or amend any matter in the pleadings, which, according to the Court, is unnecessary, scandalous, frivolous and vexatious.
20. Another provision under Order VII Rule 11 provides rejection of plaint, which does not envisage the situation where there has been an abuse of process of Court but on a ground that the suit does not show cause of action etc. However, Order VII Rule 13 does not preclude a party from presenting a fresh plaint in respect of same cause of action.
21. Basically, the Central Administrative Tribunal was constituted to redress the service grievance of an employee holder of a civil post under Union of India. This ranges from all conditions of service from appointment till retirement. Suspension, though not a penalty, but a condition of service relating to which any grievance raised is amenable to the jurisdiction of the Tribunal.
22. In the matter of adjudication, an abuse of process of Court has been construed in its legal implication, as tactics adopted by the litigant to institute a frivolous claim on falsehood committing misrepresentation or fraud, for which the only consequent action is rejection of the proceedings of the case and non-entitlement of relief to the concerned.
23. Even in judicial review, the Courts are not invested with absolute discretion but equity, fairness and element of rule of law and justice are integral part, as ruled by the Apex Court in Meerut Development Authority v. Association of Management Studies & another, (2009) 6 SCALE 49. No doubt, in administration of justice pragmatism is permissible but with checks and balances with the growing society and requirements, law moulds itself accordingly. Access to justice is a human right as ruled by the Apex Court in Tamilnad Mercantile Bank Share Holders Welfare Association v. S.C. Sekar & others, (2009) 2 SCC 784.
24. Learned ASG instead of presenting the case on merits, so that the controversy would end, has invoked his right to raise the preliminary issue of dismissal of OA on vexatious pleadings. Though at any stage this can be examined but unlike jurisdiction this issue cannot be treated as a preliminary issue, yet in the interest of justice and to prevent miscarriage of justice, we have entertained this objection of learned ASG for determination.
25. No doubt, when an aggrieved government servant approaches the Tribunal on an illegality, it maybe his viewpoint that he has been treated in an arbitrary and unreasonable manner but the vires of the action of the respondents-Government has to be examined and on determination, a final view of the matter is the prerogative of the Tribunal.
26. Sometimes to achieve the goal, a litigant, though the pleadings are prepared by the Advocate, raises certain irrelevant considerations in an attempt to fortify his case and to resort to one of the devices and grounds in law, allegations are leveled as personal malafides against the officers, who are according to the litigant instrumental in victimization of the government servant. This we have to examine. It is trite in law that when malafides and colourable exercise of powers is alleged as a ground to challenge the order, by which a government servant is aggrieved of, burden of proof solely lies upon the person taking the stand to establish malafides, as ruled by the 3 Judge Bench of Apex Court in C.K. Gangadharan & another v. Commissioner of Income Tax, Cochin, (2008) 8 SCC 739.
27. It is also trite that whenever malafides are raised, which has an object of damaging the interest of the parties and aimed at some other party, there has to be a factual basis with material and details on record, as ruled by the Apex Court in Girias Investment Pvt. Ltd. & another v. State of Karnataka & others, (2008) 7 SCC 53.
28. The allegations of malafides are to be strong convincing and established to its hilt as a foundation is the requirement of law, by which an administrative decision is declared ultravires either on legal malafides or personal one, as ruled by the Apex Court in Chandra Prakash Singh & others v. Chairman, Purvanchal Gramin Bank & others, (2008) 12 SCC 292.
29. Applicant before us has a long history of litigation. His initial act of reporting theft of public money and public revenue and involving one Shri P.K. Mishra, DGIT (Vigl) & CVO, CBDT and other officers, resulted in his suspension, which was challenged before the Tribunal in OA-718/207. An order passed on 27.11.207 set aside the order with direction to hold a review committee meeting, which when challenged before the High Court of Delhi in WP (C) No.482/208, an order passed on 26.3.2009 modified the order by holding that the liberty given by the Tribunal was meant to pass fresh orders and the order passed on 8.11.2007, the legality of which has been left to be challenged. CP filed by the applicant challenging the orders dated 8.11.2007 and 22.10.2009. The liberty was availed to establish the order basically on the ground that the same is without jurisdiction and in contravention of the decision of the Apex Court in Union of India & others v. Dipak Mali, SLP (C) No.6661/2006 decided on 15.12.2009. We cannot be oblivious of the fact that when the allegations are made as personal malafides against impleaded private respondents, who despite service have not appeared, their omission to file reply and inaction to rebut the allegations would speak volume about this mute absence. It is also not a case that the official respondents have been authorized to defend these private respondents, as the reply has been filed only on behalf of official respondents. In their official capacity, though they have denied the allegations of defamatory and intemperate language and scurrilous remarks, yet the rebuttal has not come from the horses mouth. No doubt, we cannot propagate or promote abuse of the process to entertain a vexatious proceeding before us but as in PIL the High Court has found in WP (C) No.13606/2009 that in the guise of public interest a private interest being propagated and additional consideration of vexatious remarks and scurrilous allegations the petition was dismissed, would not be an authority. The aforesaid decision has not gone into the merits of the allegations and there was no probe, yet misuse of PIL resulted in dismissal. However, the situation is different here where the applicant has leveled specific allegations against all impleaded respondents whether the same are founded on some basis and material? The records being summoned and having not been produced by the Government and instead the preliminary issue being raised as a defence, we would not be in a position without conducting a probe examining the allegations to pre-judge the issue by treating these allegations as frivolous, vexatious etc. On first blush, the allegations seem to be causing insinuation and allegations of corruption, etc. against the officers, yet prima facie there is a material on record and the records available with the Government, which when examined and a clear finding is recorded, we cannot go as a pre-determination to hold that the allegations being false there has been an abuse of process of Court to dismiss the OA at the threshold.
30. It is also trite that an objection on whatsoever grounds cannot be dismissed without adjudication. Leave apart the service grievance of the applicant but the circumstances, evidence, material produced has a background of raising personal malafides and also the allegations, which do not look sensible prima facie are to be probed into by a specific denial and explanation tendered by the concerned, without which we are not in a position to hold that impleadment of private respondents and allegations against them are basically figment of imagination of the applicant and an attempt to pollute the fountain of justice by abusing the process of the Court.
31. Before the pleadings in the plaint are struck down, the conditions precedent that it has to be proved scurrilous, insinuating, derogatory and intemperate. It is laid down on the basis of Order VI Rule 16 of Code of Civil Procedure in K.K. Modis case (supra) as a condition precedent requires us to record that there is no possibility of OA being succeeded, which we cannot do at this stage having given liberty to the applicant to assail the order and in view of prima facie case made out by the applicant.
32. In N.K. Singh v. Union of India, AIR 1995 SC 423, it has been held by the Apex Court that once the allegations of malafides have been made on affidavit, it cannot be rejected without the counter affidavit of the concerned to rebut them.
33. In Badat and Co., Bombay v. India Trading Co. by a 3 Judge Bench, AIR 1964 SC 538, the Apex Court ruled that in case denial of a fact is not specific but evasive, the said fact shall be taken to be admitted and while construing such pleadings, the proviso can be invoked only in exceptional circumstances to prevent obvious injustice to a party. The discretion under the proviso must be exercised by a Court having regard to the justice of a cause with particular reference to the nature of the parties, the standard of drafting obtaining in a locality and the traditions and conventions of a Court wherein such pleadings are filed.
34. We see no logic or rational that when recording these vexatious remarks as an abuse of process of Court no complaint has been made or rebuttal by the persons concerned, yet the Government without taking a specific stand or rebuttal against those remarks is defending these allegations but avoiding production of records.
35. No doubt, at this stage, we cannot pre-determine the issue that applicant has not leveled scurrilous and insinuating remarks but a probe is required, which would be a cumulative process by hearing the OA on merits and thereafter deciding the issue. Moreover, in this country, law has developed to the extent that on libel and slander, legal remedy is available to the concerned, for which law shall take its own course.
36. In these circumstances, we do not find the preliminary objection at this stage raised by learned ASG as sustainable. The same is accordingly overruled for the present.
Let the matter be heard finally on merits on 15.4.2010.
List as part-heard.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/