Allahabad High Court
Ex Jwo Raj Nath Mishra vs Union Of India And 5 Others on 21 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 1776, (2020) 138 ALL LR 513 (2020) 1 ADJ 541 (ALL), (2020) 1 ADJ 541 (ALL)
Author: Biswanath Somadder
Bench: Biswanath Somadder, Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 7 Case :- SPECIAL APPEAL DEFECTIVE No. - 915 of 2019 Appellant :- Ex Jwo Raj Nath Mishra Respondent :- Union Of India And 5 Others Counsel for Appellant :- Shiv Kant Pandey Counsel for Respondent :- A.S.G.I. Hon'ble Biswanath Somadder,J.
Hon'ble Ajay Bhanot,J.
Heard Sri Shiv Kant Pandey, learned advocate for the appellant and Sri Ashok Singh, learned advocate for the respondents.
The instant Special Appeal arises in respect of a judgment and order dated 25th July, 2019 passed by a learned Single Judge in Writ-A No.10759 of 2019 (Raj Nath Mishra Vs. Union of India and 5 Others). By the impugned judgment and order, the learned Single Judge has been pleased to dispose of the writ petition.
The Special Appeal has been preferred by the writ petitioner. For convenience, the judgment and order is quoted hereinbelow in its entirety:
"This petition is directed against an order dated 17.1.2019, whereby representation made by the petitioner on 1.2.2010 has been rejected by the Under Secretary to the Government of India. This order apparently has been passed on the basis of a direction issued by the Division Bench of this Court in Writ Petition No. 69688 of 2010, which was disposed of vide following orders passed on 18.4.2018:-
"We have heard Sri Shiv Kant Pandey, learned counsel for the petitioner and Sri Satish Kumar Rai, learned counsel appearing for the Union of India.
By means of this writ petition, the petitioner has challenged the order of Armed Forces Tribunal,Regional Bench,Lucknow dated 6.10.2010 by which the petition of the petitioner has been rejected as not maintainable and not falling under the category of service related matter. The allegations of the petitioner is that for use of the canteen facility as a retired Junior Warrant Officer, Air Force, he was denied the facility and was manhandled and was put to confinement illegally against which the petitioner made a complaint dated 30.4.2008 to Air Officer Commanding-in-Chief (AOC-in-C), Head Quarter, Central Air Command, Bamrauli, Allahabad, respondent No.3 which was rejected by the order dated 24.12.2009. Against that order, the petitioner filed an appeal before the Armed Forces Tribunal which has also been rejected as not maintainable.
Learned counsel for the petitioner further submits that he has also made a complaint to the Defence Secretary, Ministry of Defence, Govt. of India, New Delhi on 1.2.2010. Whether such a complaint is statutory or not has not been indicated anywhere or has been argued.
Learned counsel for the petitioner further submits that he does not wish to press any other prayer except the prayer No.B which is to the following effect:
"Writ,order,direction in nature of mandamus commanding respondents 1 and 2 to take disciplinary action against the respondent no.5 in accordance with law."
Without going into the merits of the case, if the petitioner has made a complaint to the higher authority, that is, respondent no.1, the said complaint may be considered and decided in accordance with law.
With the aforesaid direction, the writ petition is disposed of."
Petitioner thereafter filed a Contempt Petition stating that the representation had to be decided by respondent no. 1 of the writ petition and that the Under Secretary, who has passed the order, is not competent to do so. The Contempt Petition No. 6116 of 2018 has been dismissed on 24.1.2019 and thereafter the Review Petition No. 1 of 2019 has been dismissed on 6.5.2019. Order dated 6.5.2019 passed in review petition reads as under:-
"Heard learned counsel for the parties.
It is urged by learned counsel for the applicant that the affidavit of compliance is sworn by Commanding Officer HQ CAC (U) Air Force Station Bamrauli, but has not been sworn by the contemnor-Defence Secretary, Ministry of Defence, Government of India. Further, it is contended that the representation of the applicant pursuant to the writ court order has been decided by the Under Secretary to the Government of India and not by the Defence Secretary.
On specific query, learned counsel for the applicant is unable to show any Rule, Regulation/Circular that the Under Secretary to the Government of India is not the competent authority to consider and decide the representation of the applicant.
The review petition being devoid of merit is accordingly dismissed."
It is thereafter that the order dated 17.1.2019 has been assailed in the present writ petition. Before referring to the specific argument advanced on behalf of the petitioner, it would be appropriate to take note of the representation which was directed to be considered and decided under the orders of this Court. Para Nos. 3,5 & 6 of the representation dated 1.2.2010 reads as under:-
3. That while so doing I was wrongfully by Sqn. Ldr. R. Ghosh then Office-in-Charge of Air Force Canteen Bamrauli, Allahabad. I was badly abused and criminally assaulted by him.
5. That the said conduct of said officer is not only unbecoming on his part but also offence under Section 45 and 71 of the Air Force Act, 1950.
6. That the said conduct of said officer is an offence under Sections 166,323,339,341,349,350,351,355,504,506 and also offence under Sections 340 and 342 of Indian Penal Code (IPC) ,1860."
A perusal of the complaint would clearly go to show that the petitioner alleges various offences to have been committed against him by respondent authorities. It is not in issue that the petitioner is an Ex-Airman and has superannuated in the year 1994. The incident giving rise to making of the representation was of 26.4.2008. For any act of offence, which is stated to have been caused against the petitioner, the remedy of the petitioner would be to approach the appropriate forum as provided under the Criminal Procedure Code/ Indian Penal Code etc. A representation in that regard would not subserve the purpose of the petitioner and filing of this writ petition would not be the appropriate remedy.
Leaving it open for the petitioner to pursue his grievance before an appropriate forum where all such issues can be examined, this petition is consigned to records."
A bare perusal of the records reveals that the writ petitioner has approached this Court in yet another round of litigation. The earlier round of litigation culminated in an order dated 18th April, 2018, passed by an earlier Division Bench of this Court in Writ-A No.69688 of 2010 (Raj Nath Mishra Vs. Union of India Thru Defence Secretary and others). After the said order was passed, the writ petitioner moved a contempt petition and also a review petition, both of which stood dismissed in terms of an order dated 6th May, 2019. The learned Single Judge, while rendering the impugned judgment and order, took notice of the earlier order passed by this Court. Consequently, the order dated 17th January, 2019, was passed by the Under Secretary to the Government of India rejecting the writ petitioner's representations.
The question which now arises for consideration in the facts of the instant case as to whether there is any palpable infirmity or perversity in the impugned judgment and order which would warrant interference in an Intra-Court Special Appeal ?
In order to answer this question, we need to examine certain uncontroverted facts. As observed earlier, the writ petitioner had approached this Court and a Division Bench of this Court passed an order on 18th April, 2018, in Writ-A No.69688 of 2010 (Raj Nath Mishra Vs. Union of India Thru Defence Secretary and others). Subsequently, the contempt application as well as the review petition -- both filed by the writ petitioner -- were dismissed in terms of the order dated 6th May, 2019. No appeal was preferred therefrom. The order dated 17th January, 2019 was passed by the Under Secretary to the Government of India, not suo moto, but in terms of the orders of this Court as stated hereinbefore.
The writ Court or for that matter the Court of Appeal sitting in an Intra-Court Special Appeal ought not to transpose itself as an appellate authority after a particular authority has performed its obligation to abide by the specific directions given by the Court and rendered a decision in the matter supported with cogent reasons. The discretionary jurisdiction of this Court under Article 226 of the Constitution of India ought not to be invoked in such cases, unless, of course, the decision so rendered by the concerned authority was palpably wrong or arbitrary or perverse or smacked of mala fide motive or had been rendered without adhering to the specific directions given by the Court.
In this context, one may take notice of a judgment of the Calcutta High Court rendered in the case of Amarendranath Mandal Vs. State of West Bengal, reported in AIR 2011 Cal 56.
None of the exceptions as elucidated in the judgment referred above, which would warrant interference, either by the writ Court or the Court of Appeal, are present in the facts of the instant case. The order dated 17 January, 2019 passed by the Under Secretary, Government of India, is supported with cogent reasons and has been rendered consequent to the specific order of this Court.
That apart, the records of the case demonstrate that the writ petitioner has developed a habit of filing successive writ petitions, each one of them centering around the same issue. It is as if the writ petitioner has decided to keep on moving this Court, by filing successive writ petitions, till such time an order is passed by this Court which enures to his benefit. (emphasis supplied).
This sort of an attitude of a litigant is precisely what has been frowned upon by the Hon'ble Supreme Court in several of its judgment. In Dr.Buddhi Kota Subbarao Vs. K. Parasaran and others, reported in (1996) 5 SCC 530, it was observed that no litigant has a right to unlimited drought on the Courts' time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived or frivolous petitions.
The above observation has also been reflected in a latter judgment of the Hon'ble Supreme Court rendered in the case of Sunil Kumar Vs. State of Haryana, reported in (2012) 5 SCC 398, while it was considering as to whether there should be any restraint on a writ petitioner in such a fact situation or whether he should be permitted to abuse the judicial process as he likes (emphasis in original).
The above observations of the Hon'ble Supreme Court were taken into consideration by the Calcutta High Court in the case of Debashis Biswas Vs. The State of West Bengal and Others, reported in 2013 (1) Cal LT 25.
For reasons stated above, this Court is unhesitatingly of the view that the impugned judgment and order passed by the learned Single Judge does not warrant any interference and the instant Special Appeal is liable to be dismissed and stands, accordingly, dismissed.
Order Date :- 21.10.2019 Ashish Tripathi (Biswanath Somadder,J.) (Ajay Bhanot,J.) Court No. - 7 Case :- SPECIAL APPEAL DEFECTIVE No. - 915 of 2019 Appellant :- Ex Jwo Raj Nath Mishra Respondent :- Union Of India And 5 Others Counsel for Appellant :- Shiv Kant Pandey Counsel for Respondent :- A.S.G.I. Hon'ble Biswanath Somadder,J.
Hon'ble Ajay Bhanot,J.
(Ref: Civil Mis Delay Condonation Application No.1 of 2019) After considering the submissions made by the learned advocates for the parties and upon perusing the application for condonation of delay, it appears that sufficient cause has been shown to explain the delay in filing of the appeal and as such, the delay is condoned. The application for condonation of delay is accordingly allowed.
Order Date :- 21.10.2019 Ashish Tripathi (Biswanath Somadder,J.) (Ajay Bhanot,J.)