Frivolous litigations by State Governments!

It appears, at times that the treasury of various State Government is filled to the brim! One is not surprised at the inclination of various State Governments to spend common man’s money on fruitless litigation. The Supreme Court of our country has, time and again denounced the practice adopted various State Government of filing appeals as a matter of course.  In the case of State of Uttarkhand  & Ors v. Kanhya Lal [2014] INSC 244 (29 April 2014), the Supreme Court reprimanded the State Government of Uttarkhand in pursuing a frivolous litigation. 

What are the facts of this case?

In this case, a teacher named Kanhya Lal applied for the post of Assistant Teacher (Language) L.T. Grade in the government school in the State of Uttarkhand. In this regard, the State Government had issued an advertisement seeking applications for this post. Further, the first advertisement clearly indicated the last date for submission of Application to be 21st November, 1997, which was advanced and preponed to 10th November, 1997 in terms of a correction issued on 24th October, 1997. The only infirmity in the Application of Mr. Kanhyalal was that he had failed to include his Marksheet along with his Application Form, which was submitted by him on 4.11.1997.  He had made full compliance by personally filing his Marksheet on 12.11.1997. The State Government, instead of keeping in perspective the fact that a corrigendum has been issued preponing the last date of submission of Forms from 21.11.1997 to 10.11.1997, and instead of being fair and flexible, rejected the application of Mr. Kanhyalal and instead selected another applicant  whose quality points were much lower in comparison to Mr. Kanhyalal.

What action did Mr. Kanhyalal take to fight this injustice?

Mr Kanhyalal was rightly disturbed by the situation that the last appointed candidate had 55.6 quality points whereas he possessed much higher merit, i.e. 58.4 quality points. He therefore filed a writ petition in the High Court of Uttarkhand at Nanital.

How did the case proceed?

The Single Judge of the Uttarkhand High Court upheld the petition of Mr. Kanhyalal.  After going into the factual matrix of the case, the learned Single Judge had directed by Order dated 10.3.2008 that the case of Mr. Kanhyalal should be considered within three months for appointment to the post of Assistant Teacher (Language) L.T. Grade, if there is no other impediment in his selection . The State Government filed an appeal against the decision of the Single Judge.  However, the order of the Single Judge was affirmed by the Division Bench of the Uttarkhand High Court. Being aggrieved by the decision of the Division Bench of the Uttarkhand High Court, the State Government filed a special leave petition before the Supreme Court.

How did the matter proceed before the Supreme Court?

The State Government of Uttarkhand did not challenge the appointment per se.  The only grievance of the State Government was that Mr. Kanhyalal cannot claim appointment from back date i.e., from 1997.  After reading the documents filed before the Supreme Court, the Supreme Court formed the view that the action of the Additional Director, Education of the State Government of Uttarkhand amounted to contempt of Court.  This is because the State Government had simply not disclosed any other impediment in the appointment of Mr. Kanhyalal as directed by the High Court. The State Government had, on the contrary, repeated the same facts, which had not found favour before the High Court. The Supreme Court observed that “It is palpably clear that the Additional Director of Education, Garwal Division, Pauri, has contumaciously adorned itself with appellate powers over the decision of the learned Single Judge of the High Court”.

What were the special observations of the Supreme Court?

The Supreme Court made the following observation which is worth taking a note of:

“In this case, the writ petitioner is a Teacher and it is unfair to him to be repeatedly drawn into fighting futile, if not frivolous litigation by the State. It has become the practice of the State to carry on filing appeals even where the case does not deserve it, knowing fully well that private respondents will be physically fatigued and economically emasculated in pursuing protracted litigation”.

What was the ruling of the Supreme Court?

The Supreme Court directed the State Government of Uttarkhand  to appoint Mr. Knahyalal the post of Assistant Teacher (Language) L.T. Grade, i.e. the advertised post, treating him to have been appointed along with the other candidates who were selected in response to the subject advertisement for appointment to the post of Assistant Teacher (Language) L.T. Grade.  The Supreme Court further held that the seniority of Mr. Kanhyalal shall be fixed such that it is not detrimental to the services already rendered by him.

Are long drawn litigation processes considered as a mitigating factors while awarding sentence?

I am not being original when I say that litigation in India is a mentally draining experience, both for the accused and the victim.   For the accused, the psychological trauma of undergoing numerous years of never ending litigation is the biggest punishment.  Whilst the final judgment is being awarded there is always an apprehension in the mind of the accused whether the mental torture suffered in the long drawn litigation process will act as one of the mitigating factors by the Supreme Court while awarding judgment.

There is no straight jacket formula which is applied by the Hon’ble Supreme Court while awarding sentence.  Below is one interesting case  (V.K. VERMA v. CBI [2014] INSC 96 (14 February 2014) which sheds light on the rationale adopted by the Supreme Court while awarding sentence.

What is this case all about?

The accused in this case was tried under the Indian Penal Code as well as the Prevention of Corruption Act, 1947.  The charge was that the accused demanded and accepted bribe of Rs.265/- from a contractor. According to the accused, the contractor had an axe to grind since the accused did not budge to his demand for improper measurement of the work done by him and he was actually trapped at his instance. FIR was registered on 21.12.1984. The sessions court convicted him of the charges and sentenced him to undergo rigorous imprisonment for a period of one and a half years with a fine of Rs.5,000/- each under the charged Sections, as per Judgment dated 10.04.2003.

What happened thereafter?

The accused approached the High Court.  However, the High Court declined to interfere with the conviction and sentence and dismissed the appeal.  The accused therefore approached the Supreme Court.

What factors did Supreme Court take into consideration?

It was noted by the Supreme Court that it took ten years for the matter to be registered as sessions case and stranger is it to see that the trial also took almost ten years and still stranger is that the matter took ten years in the High Court.

Pursuant to dismissal of the appeal before the High Court, the appellant surrendered before the Special Judge on 03.10.2003 and he was sent to custody. On 28.10.2013, the Supreme Court issued notice limited to the quantum of sentence. Thereafter, by Order dated 16.12.2013, the appellant was enlarged on bail.

In imposing a punishment, the concern of the court is with the nature of the act viewed as a crime or breach of the law. The maximum sentence or fine provided in law is an indicator on the gravity of the act. Having regard to the nature and mode of commission of an offence by a person and the mitigating factors, if any, the court has to take a decision as to whether the charge established falls short of the maximum gravity indicated in the statute, and if so, to what extent.

Did the Supreme Court factored in the long delay while awarding the sentence?

It was observed by the Supreme Court that the long delay before the courts in taking a final decision with regard to the guilt or otherwise of the accused is one of the mitigating factors for the superior courts to take into consideration while taking a decision on the quantum of sentence.

How did the foregoing principle affect the case under discussion?

The Supreme Court took into consideration that the FIR was registered by the CBI in 1984. The matter came before the sessions court only in 1994. The Session’s court took almost ten years to conclude the trial and pronounce the judgment. Before the High Court, it took another ten years. Thus, it is a litigation of almost three decades in a simple trap case and that too involving a petty amount.

The Supreme Court took into consideration that the accused was 76 years of age at the stage of filing the appeal. The Supreme Court was also informed that he the accused was in not in good health, having had also cardio vascular problems. The offence was of the year 1984. It is almost three decades now. The accused has already undergone physical incarceration for three months and mental incarceration for about thirty years. The Supreme Court therefore allowed the appeal on the grounds that at that age and stage, it would not be economically wasteful, and a liability to the State to keep the appellant in prison. Having given thoughtful consideration to all the aspects of the matter, the Supreme Court opined that the facts mentioned above would certainly be special reasons for reducing the substantive sentence but enhancing the fine, while maintaining the conviction.

The substantive sentence of imprisonment was reduced to the period already undergone. However, an amount of Rs.50,000/- was imposed as fine.

Is the punishment proportional to the severity of the crime?

This article, in the form of an FAQ, is an attempt at explaining the legal principle upheld by the Supreme Court judgment in the case of Ishwar Chandra Jayswal V the Union of India in [2014] INSC 3 simplest possible terms.  

1.    .What is the fact of this case?

Mr. Ishwar Chandra was an officer with the Indian Railways. He was dismissed from the service as he was found taking bribes.  Three articles of charges were framed against him. Article-I was that he demanded and accepted a sum of Rs.26/- from Shri Pyare Ram, Khalasi for issuing in his favour a Fit Certificate.

Article-II, in similar vein was that the Appellant demanded and accepted a sum of Rs.34/- from Shri Nandlal, Semi-skilled Revetter for issuing him a Fit Certificate. Article-III was that he had demanded and accepted Rs.18/- from Shri Balroop, Semi-skilled Revetter for issuing of Fit Certificate.  All the charges against Mr. Ishwar were proved after the completion of the enquiry. The disciplinary committee, after considering the response of Mr. Ishwar, levied penalty on him and removed him from the services.

2.    How did the case proceed?

Mr. Ishwar filed a revision application with the division bench of the Allahabad High Court.  The High Court came to the same conclusion as the disciplinary committee and did not reverse the decision of the disciplinary committee. Mr. Ishwar therefore approached the Supreme Court against the decision of the High Court.

3.    On what grounds did Mr. Ishwar approached the Supreme Court?

Mr. Ishwar’s case was based on the premises whether the punishment of removal of service of Mr. Ishwar on the alleged demand of meagre amount of Rs.18-45 is contrary to the doctrine of proportionality. 

4.    What is the doctrine of proportionality?

The doctrine of proportionality deals with the balancing test. In simple terms, it is against excessive punishment in comparison of the degree of crime committed. To clarify, the degree of punishment should be proportional to the nature of crime.

5.    What verdict did the Supreme Court give?

The Supreme Court allowed the appeal of Mr. Ishwar. The Supreme Court held that it is a settled principle that in all circumstances, the punishment imposed on the delinquent workman or officer, must be commensurate with the Articles of Charge levelled against him.

The Supreme Court considered the fact that Mr. Ishwar was  75 years of age at the stage of the hearing of the appeal.. At the time when the Articles of Charge had been served upon him, he had already given the best part of his life to the service of the -Indian Railways. Furhter, Part III of The Railway Servants (Discipline & Appeal) Rules, 1968 contains the penalties that can be imposed against a Railway servant, both Minor Penalties as well as Major Penalties. The Supreme Court further observed that it was not established that Mr.Ishwar had, as a matter of habit or on a wide scale, made illegal demands from Railway servants desirous of obtaining a Fit Certificate. Nevertheless, since two of the three charges were proved, the Supreme Court opined that it was it was fit to impose a penalty of compulsory retirement i.e. in order to meet the end of justice.  

The Supreme Court further opined that imposition of the penalty of compulsory retirement would have instilled sufficient degree of fear in the mind of the employees. It would also not set at naught several years of service which Mr. Ishwar gave to the Indian Railways. Finally, the Supreme Court held that deprivation of retiral benefits in addition to loss of service is entirely incommensurate with the charge of Mr. Ishwar having taken very small sums of money for the issuance of Fit Certificate to other Railway employees.

There are several decisions in which the Supreme Court has held that if the conscience of the Court is shocked as to the severity or inappropriateness of the punishment imposed; it can remand the matter back for fresh consideration to the Disciplinary Authority concerned.

6.    What is the relevance of this case for us?

If at any point of time during the course of your professional life you breach your company policies/rules and a disciplinary action is initiated against you consequentially leading to a punishment which can be considered as unduly severe, please be minded that you have the right to challenge the punishment on the grounds of doctrine of proportionality. 

WHOM DO I VOTE FOR?

“The key to good decision making is not knowledge. It is understanding. We are swimming in the former. We are desperately lacking in the latter.” ― Malcolm Gladwell

In the course of the last one month, we the voters were inundated with numerous sloganeering, shouting, brow beating and sophisticated marketing pieces of various political parties for the most obvious reason; the deep desire of influencing our decision to vote! As it happens when one is served with too many dishes on a platter, it becomes a hotch potch. Too many flavors may, at times, set one thinking! Whilst one may have good knowledge of individual flavors, lack of understanding of the combined effect of different flavors may lead us into making a bad decision with respect to the cuisine as a whole! 

Today was the day when we went out to vote!  Mumbai voted! Badly though! The sad irony of the day was this! I had the knowledge, well in advance of the scheduling of general election this year! I had the knowledge of incumbent political party, its virtues and vices to the last detail! I had the knowledge of the aspiring opposition who dreams of forming the next government! I was aware of the minutest detail of the protagonist and the supporting actions in the drama of politics!  The only knowledge I lacked and the only awareness that I did not have was whom do I vote for? Until the last minute when I cast my vote I was debating the pros and cons of various candidates standing from Mumbai North.  The fundamental issues that were bothering me were (a) What if my vote gets wasted if I vote for Candidate “A”? (b) Why am I so bothered about my vote getting wasted?( c) Should I worry about the profile of the candidate at the local level or should I be worried about the who will form the government at the center? (d) What difference will it make if I cast my vote either ways? (e) What if everybody is facing the same dilemma and ends up casting vote on the basis of media trends and reports rather than voting for someone who really deserves? (f) Why is the mass voting pattern bothering me so much?

These numerous thoughts were running parallel in my mind while I was standing in the line.  These thoughts were bothering me while my identity proof was being verified by the polls officer.  I was still undecided until my turn to cast the vote arrived.  Whilst I was in front of the voting machine I did not really have the time to continue with the never ending analysis.  I cast my vote immediately. The decision was made in a split second.  The blink decision was made on the basis of the understanding that at the end of the day the decision is simple!  It is not so complicated after all.  All that I want is that a good and honest and capable candidate to govern my constituency. Is that not what we all want?  Why do we complicate it? We allow the constant media barrage influence our decision making to the extent that we make decision on the basis of complete lack of understanding of certain simple fundamental values. 

There are chances that the candidate whom I voted for may not win. There is a possibility that the party whom I voted for may not form government at the center.  So what? At least I have the satisfaction that I voted for a candidate on the basis of merits. I strongly believe that if we, at an individual level let merit drive our decision making process; then collectively as a nation, we will not give ourselves the chance to complain as regards the lack of merit of the incumbent government! 

Media...Does it abdicate responsibility?

Whist I am an avid reader of various news paper, specially the TIMES OF India, I am of the view  the media, at times, abdicates from its responsibility of true and meaningful publication.  I personally know of cases wherein the facts have been completely misconstrued.  Further, this has the effect of totally tarnishing the image of the person about whom the report has been published.  This is especially in the case of investigative journalism!  Journalist should be minded about the fact that for them, it is just one piece of an article but for the person under consideration, it is libel of a life time, which may have the impact of completely destroying his or her life!  

I reproduce below, an article that was published in THE HINDU 

(http://www.thehindu.com/opinion/lead/media-and-issues-of-responsibility/article2559712.ece)  

The article is a part of the speech of a retired judge.  I am reproducing it because I am on the same page with the opinion expressed by the Judge. This is the way it goes:

"I may only mention certain defects in the functioning of the India media today.

Twisting facts

One of the defects is that the media often twist facts. I would like to give an example.

One day, a leading English newspaper published on its front page a photograph of Justice Gyan Sudha Misra of the Supreme Court with the caption: “Supreme Court Judge says that her daughters are liabilities.” This was a distorted and fallacious item of news, published on the front page.

Supreme Court Judges have to disclose their assets and liabilities. Against the liabilities column, Justice Misra had written: “two daughters to be married.” Strictly speaking, it was not necessary to mention this because liabilities mean legal liabilities, for example, housing loan, car loan, and so on. Justice Misra's intention was obviously to say that she would have to spend on her daughters' future marriage. She has three daughters (no son), only one of whom has been married. Justice Misra never said, nor intended to say, that her daughters were liabilities. The news was false and defamatory, with the obvious intention of creating a sensation.

Paid news

A second defect concerns the issue of paid news that has become prominent of late. In the 2009 elections, it was a scandal. How this vicious practice could be stopped needs to be discussed. Incidentally, in compliance with an order of the Chief Information Commissioner dated September 19, 2011, we have placed the 71-page report of the Committee consisting of Paranjoy Guha Thakurta and Sreenivas Reddy on our website, www.presscouncil.nic.in with the disclaimer that the Press Council had rejected this report at its meeting held on April 26, 2010.

Non-issues as real issues

A third defect is that the media often portray non-issues as real issues, while the real issues are sidelined. The real issues in India are economic, that is, the terrible economic conditions in which 80 per cent of our people are living, the poverty, unemployment, lack of housing and medical care and so on. Instead of addressing these real issues, the media often try to divert the attention of people to non-issues. Such as that the wife of a film actor has become pregnant, whether she will give birth to a single child or to twins, and so on. Are these the real issues facing the nation?

At a Lakme India Fashion Week event, there were 512 accredited journalists covering the event in which models were displaying cotton garments, while the men and women who grew that cotton were killing themselves at a distance of an hour's flight from Nagpur, in the Vidharbha region. Nobody told that story, except one or two journalists, locally.

Is this a responsible way for the Indian media to function? Should the media turn a Nelson's eye to the harsh economic realities facing over 75 per cent of our people, and concentrate on some ‘Potemkin villages' where all is glamour and show biz? Are not the Indian media behaving much like Queen Marie Antoinette, who said that if the people had no bread, they should eat cake?

No doubt, sometimes the media mention farmers' suicides, the rise in the price of essential commodities, and so on, but such coverage is at most 5 per cent to 10 per cent of the total. The bulk of the coverage goes to showing the life of film stars, pop music, fashion parades, cricket and astrology.

Tendency to brand

Here is a fourth defect. Bomb blasts have taken place near the Delhi High Court, in Mumbai, Bangalore and so on. Within a few hours of such a bomb blast, many TV channels started showing news items that said that the Indian Mujahideen or the Jaish-e-Mohammed or the Harkatul-Jihad-e-Islam had sent e-mails or text messages claiming responsibility. The names of such alleged organisations will always be Muslim ones. Now, an e-mail can be sent by any mischievous person, but by showing this on TV channels and the next day in the newspapers, the tendency is to brand all Muslims as terrorists and bomb-throwers.

The truth is that 99 per cent of the people of all communities, whether Hindu, Muslim, Christian or Sikh, and of whatever caste or region, are good. But the manner in which such news is shown on TV screens and published in newspapers tends to create the impression that all Muslims are terrorists, and evil — which is totally false. The person who sends such e-mails or text messages obviously wants to create hatred between Hindus and Muslims, which is the old British divide-and-rule policy continuing even today. Should the media, wittingly or unwittingly, become part of this policy of divide-and-rule?

No doubt there are defects not only in the media but in other institutions also, for example, the judiciary, the bureaucracy, and so on.

There are two ways to remove these defects in the media. One is the democratic way, that is, through discussions, consultations and persuasion — which is the method I prefer. The other way is by using harsh measures against the media, for example, by imposing heavy fines on defaulters, stopping government advertisements to them, suspending their licences, and so on.

In a democracy we should first try the first method to rectify the defects through the democratic method. For this purpose, I have decided to have regular get-togethers with the media, including the electronic media, so that we can all introspect and ourselves find out ways and means to rectify the defects in the media, rather than this being done by some government authority or external agency.

I propose to have such get-togethers once every two or three months, at which we will discuss issues relating to the media and try to think of how we can improve the performance of the media so that it may win the respect and confidence of the people.

If the media prove incorrigible, harsh measures may be required. But in my opinion, that should be done only as a last resort and in extreme situations. Ordinarily, we should first try to resolve issues through discussion, consultation and self-regulation. That is the approach which should be first tried in a democracy. I, therefore, request the Union government to defer the implementation of its recent decision regarding news channel licences, so that we can ourselves discuss the issue thoroughly, and ourselves take corrective measures.

Till now the function of the Press Council was only adjudication. I intend to make the Press Council an instrument of mediation in addition, which is in my opinion the democratic approach. For this purpose, I need help, cooperation and advice from the media.

India is passing through a transitional period in its history, from a feudal agricultural society to a modern industrial society. This is a very painful and agonising period. The media must help society in going through this transitional period as quickly as possible, and by reducing the pain involved. This they can do by attacking feudal ideas, for example, casteism and communalism, and promoting modern scientific ideas."

The Innocent Project

I know how it feels, may be I do not exactly know; but I have certainly tried empathizing and putting my self into the shoes of those people who have been written off by the society at large! Are not we, as a race, well versed with the art of writing people off? Are we not the masters in the art of reaching hasty conclusions? Don't we pass judgments every moment we breath out? Have we ever wondered what are the implications of this "not so harmless" sociological trait?  Have we ever bothered sitting back and analyzing what price one has to pay because of our habit of being reckless self appointed judge?  This sociological trait is a part of the criminal justice system as well!  The investigating agencies and judges constituting the criminal justice system are a part of the same sociological system! And this trait of writing a person off assumes monstrous proportion when an innocent person is wrongly accused of the crime he or she has never committed!  Unfortunately, in our country, there are not any projects/ NGO's to help those people who have been wrongly framed.  This, despite the fact that the criminal justice system of our country suffers from numerous inbuilt fallacies!  As a citizen of this country and as a lawyer I am certainly interested to start a project to help those who are falsely accused!  This is also because I have seen from close quarters the lives of those who have been falsely accused!  Friends write them off! Family write them of!!  It is important that we start a project which helps us find the truth and which eventually makes our criminal justice system a place where one truly gets justice!

Would appreciate any help and support in this regard!

Rational behind the title

Life can be very simple and beautiful.....depends on the way one precieves it.....inversly proportional to the degree of prejudices in one's mind!!!!!

To begin with....one may try rationalizing or figuring out the logic behind the title that I have choosen for my blog...the logic is very simple...i think right from the time of genesis...mankind has left no stone unturned to ensure that an amazing degree of confusion and chaos is created by preceiving facts in the most contorted manner possible and thereby making any and every entity...whether it be living or non living.....victim of its prejudices....a million different manner of preceiving a situation...a million different conclusion....and billion prejudicial repercussions!!!!