Municipal bodies responsible for proper civic amenities: High Court

Executive inaction is a common cause in the country. So much so that the citizens have lose all hope of redressal before the civic authorities and have to approach and plead before the judiciary to take up their cause. A similar contingency took the residents of Panchkula city to file a public interest litigation before the Punjab and Haryana High Court, being aghast with the inaction of the Municipal Council, Panchkula in providing civic amenities, ensuring public hygiene, and upkeep and maintenance of Panchkula city. The plight of these residents was evident from the contents of their petition which the High Court duly noted as under;

Petitioners have made a grievance that worst ever civic conditions are prevailing in Panchkula. Roads are full of potholes, broken to the extent that metalled portion is not visible. The petitioners also lament Municipal Council for poor drainage system and non-maintenance of parks. The writ petitioners have gone to the extent of praying that this Court should direct the State Government to dissolve the house of Municipal Council, Panchkula as they have miserably failed to perform their statutory duties and obligations. The writ petitioners have made further averments that Municipal Council though having necessary adequate funds have been incurring wasteful expenditure for lack of vision and funds are pilfered due to corruption prevailing in the system to which many Municipal Councillors are party. To illustrate this averment, petitioners have pleaded that one year old foot paths are being replaced by new foot paths, cement chequered tiles used on a foot path and laid year ago after dismantling are being taken away by Contractor or other persons. Petitioners have urged that neither there was any necessity nor it was prudent to replace the old tiles and the funds spent in this manner could have been utilized in a better way.

The High Court, to examine the merits of the allegation, appointed an amicus curie who "submitted a report depicting pathetic conditions prevailing in the city of Panchkula in regard to roads, sanitation, water stagnation and non-operation of sewage treatment plant". These allegations were retorted to by the Municipal Council which "pleaded that Municipal Council, Panchkula came into existence on 25th December, 2001 and since then the Municipal Council, Panchkula, with limited staff and limited funds, is trying its best to provide basic amenities to the residents of the city." The High Court was, however, not impressed with the defense. It noted the aspirations of the citizens for better living conditions and the mandate was upon the Municipal authorities to provide such. The High Court observed,

We have heard counsel for the parties and gone through the pleadings made in the present writ petition. The present writ petition brings into focus aspirations and hopes of the citizens of this country, who, after 62 years of independence, seek and demand that the Municipal Councils, a form of local self government, should ensure good living conditions, civic amenities and public hygiene. Government functionaries, officials of local self government, its elected representatives, have not been able to answer the growing needs and expectations of the citizens of the country. Lack of vision and perspective, compulsion of a tight rope walk to balance the need of those, who live in slums and in highly urbanized area, inadequacy of funds, difficulty in generating revenue from the stakeholders, fiscal mismanagement, populist approach to satisfy the demands of all strata of life, are some of the reasons, which can be spelled to notice various difficulties faced by the Municipal Councils/ Corporations managing the affairs of cities of India. This requires a peep into functioning and management of cities and towns of India through local self government.

Traditionally, urban local bodies have been looking after the basic amenities of civic life, which included water supply and sanitation, roads and drains, maintenance of public places, burial grounds and crematoria, cattle pounds, provision of street lights, fire brigades and maintenance of markets. For performing these duties, certain administrative and regulatory functions have also been undertaken by urban local bodies, which included maintenance of register of births and deaths, grant of license for sale of various food items, control and planning of urban development, sanctioning of building plans, inspection of buildings constructed, maintenance of record of rights and also public health areas, such as eating places, slaughter houses and tanneries etc.

By passage of time, role of urban local bodies has been substantially broadened. Regulation of land use, planning of economic and social development, safeguarding the interests of weaker sections of society including the handicapped and mentally retarded, slum improvement and upgradation, urban poverty alleviation, promotion of cultural, educational and aesthetic aspects and protection of environment and safeguarding of health have become part of functions and duties falling within Municipal domain.

New Delhi Declaration, which was adopted by the U.N. General Assembly in December 1990, though recognizes that provision of basic amenities will remain one of the core activities of the urban local bodies, enlarging the scope further announce that following objects are required to be achieved by the Municipal local bodies:

1. Protection of the environment and safeguarding of health through the integrated management of water resources and liquid and solid waste;
2. Organisational reforms, promoting an integrated approach and including changes in procedures, attitudes, and behaviour, and the full participation of women at all levels;
3. Community management of services, backed by measures to strengthen the capacity of local institutions in implementing and sustaining water and sanitation programmes;
4. Sound financial practices, achieved through better management of existing assets and extensive use of appropriate technologies.

Government of India has further resolved that water needs to be managed as an economic asset rather than a free commodity. So the provision and management of water is also one of the essential duties of Municipal bodies. To achieve the above objectives and answer needs of the growing times, Union of India has formulated a scheme, called Jawaharlal Nehru National Urban Renewal Mission.

However, in view of the fact that the Municipal authorities had woken up to the cause and begun drawing action plans for the upheaval of the living conditions in the city of Panchula, the High Court refrained from passing any directions as it felt that "that the authorities are alive to the remedial measures and are geared to take recourse to mechanism, which shall provide better urban living."

Have a look at the decision.

Compensation to Dabwali Fire Tragedy Victims: High Court

We had earlier this month written about the award of compensation granted by the Delhi High Court to the victims of Jaipur Golden Fire Tragedy and by the Gujarat High Court to the kin of those who died in the 1988 Ahmedabad airline crash. Recently now the Punjab and Haryana High Court has directed that compensation be made to the kin of those four hundred and forty six precious people (mostly children and women) who lost their lives on 23rd of December 1995 at a fire tragedy which took place at the Annual Prize Distribution Function of D.A.V. Centenary Public School, Mandi Dabwali in District Sirsa in the State of Haryana.

With various petitions filed to address the claims of the victims, finally a Commission was setup in 2003 which in its series of reports granted the compensation to the kin of the victims accordingly to the earning capacity and employing other factors. The recommendation for compensation made by the Commission was challenged in the High Court. The argument raised by the School authorities was that there was a lack of space in the school premises itself and therefore they had to book another place for carrying out the annual function. The High Court, however, was not impressed. It meticulously examined the various factual foundations of the report made by the Commission to conclude as under;

There is, in our opinion, no infirmity leave alone, any perversity in the findings of fact recorded by the Commission. The material on record was more than sufficient for the Commission to support the findings recorded by it and the legal inferences that inexorably flow from such findings. The very fact that the School did not have enough space in its own premises to organize the Annual Function, did not absolve it of the legal obligation to act prudently and to ensure that the children, staff and the parents invited to such a function are safe wherever the same may be held. That there was no other suitable place in Dabwali where the function could be held also did not mean that the School could hold the function in a Marriage Palace which admittedly had no safety measures whatsoever to take care of any emergency.

The argument that the place chosen by the School was functional and the School had no reason to believe that it would not have sufficient safety measures as required under law has not impressed us. The standard of care that may be required would vary from case to case and situation to situation. In the case of children of tender age, the care that the School Authorities were expected to take regarding their safety was much higher in comparison to the care which may be required qua adults. Children are under a disability. They need care and protection more than the grown ups. Parents who leave their children to the care of the School are entitled to rest assured that the School would act prudently while dealing with their wards and would do nothing that may in the slightest expose them to danger or compromise their safety and security. The choice of the venue for the function was, therefore, an onerous decision which the School ought to have taken having regard to all the attendant risks, hazards and imponderables that could be reasonably foreseen in a public function attended not only by the children, parents and teachers but even the general public. The School ought to have realized that holding of a function in a Marriage Palace may not be the best option especially when the Marriage Palace, did not have the statutory completion certificate and was promoting its commercial interests by offering the place gratis to the School. The School ought to have known that in a function which is open to general public, a Pandal with a capacity of 500 to 600 persons spread over no more than an area measuring 100' X 70', a gathering of 1200 to 1500 persons could result in a stampede and expose to harm everyone participating in the function especially the children who were otherwise incapable of taking care of their safety. The school ought to have known that the availability of only one exit gate from the Marriage Palace and one from the Pandal would prove insufficient in the event of any untoward incident taking place in the course of function. The School ought to have taken care to restrict the number of invitees to what could be reasonably accommodated instead of allowing all and sundry to attend and in the process increase the chances of a stampede. The School ought to have seen that sufficient circulation space in and around the seating area was provided so that the people could quickly move out of the place in case the need so arose. Suffice it to say that a reasonably prudent School Management organizing an annual function could and indeed was duty bound to take care and ensure that no harm came to anyone who attended the function whether as an invitee or otherwise, by taking appropriate steps to provide for safety measures like fire fighting arrangements, exit points, space for circulation, crowd control and the like. And that obligation remained unmitigated regardless whether the function was held within the School premises or at another place chosen by the Management of the School, because the children continued to be under the care of the School and so did the obligation of the School to prevent any harm coming to them. The principle of proximity creating an obligation for the School qua its students and invitees to the function would make the School liable for any negligence in either the choice of the venue of the function or the degree of care that ought to have been taken to prevent any harm coming to those who had come to watch and/or participate in the event. 

Even the test of foreseeability of the harm must be held to have been satisfied from the point of view of an ordinary and reasonably prudent person. That is because a reasonably prudent person could foresee danger to those attending a function in a place big enough to accommodate only 500 to 600 people but stretched beyond its capacity to accommodate double that number. It could also be foreseen that there was hardly any space for circulation within the Pandal. In the event of any mishap, a stampede was inevitable in which women and children who were attending in large number would be worst sufferers as indeed they turned out to be. Loose electric connections, crude lighting arrangements and an electric load heavier than what the entire system was geared to take was a recipe for a human tragedy to occur.

Absence of any fire extinguishing arrangements within the Pandal and a single exit from the Pandal hardly enough for the people to run out in the event of fire could have put any prudent person handling such an event to serious thought about the safety of those attending the function especially the small children who had been brought to the venue in large numbers. Applying the foresight of a reasonable person to the fact situation which the evidence established before the Commission, we have no hesitation in holding that the Commission was justified in declaring that the School was negligent in the matter of arranging the function and providing security qua those whom it owed the duty to take care.

Confirming the liability of the owners of the premise on which the accident took place, the High Court applied the concept of principal-agent relationship to hold thus;

The legal relationship between the School and the Marriage Palace as Principal and Agent apart, both were on the principles of common law liable to third parties as occupier of the premises whichwent up in flames because of their negligence to take care. ... In the instant case while the School had the absolute right to restrict the entry to the venue of the function being organized by it and everything that would make the function go as per its requirements, the owners had not completely given up their control over the premises, and were indeed present at the time the incident occurred. The facts and circumstances brought on record in the course of the enquiry establish that the School and the Marriage Palace owners were both occupying the premises and were, therefore, under an obligation to take care for the safety of not only the students, but everyone who entered the premises on their invitation or with their permission specific or implied. As to the obligation of an occupier to take care qua his invitees a long line of English decisions have settled the legal position.

The High Court further examined each of the cases of the categories of victims to confirm the award and even to increase the award of compensation in some cases. In the retrospect, however, the High Court also noted that the payment of compensation alone was not sufficient. Requiring the responsible authorities to look after the enforcement of safety measures, the High Court duly recorded its concern in the following words "Payment of compensation to those, who survived or the next of kin of those, who did not, may never heal their wounds completely nor make any material difference in the ground realities unless all those concerned do some introspection to identify the causes for such tragedies and take corrective steps to prevent their recurrence in future. That is because human tragedies of such magnitude are more often than not caused as much by lack of care and caution as by the all round failure of public authorities statutory or otherwise in the due and proper discharge of their functions and duties especially those concerning enforcement of safety measures."

Have a look at the decision.

Allotment of plots by HUDA not in accordance with law: High Court

In a recent decision the High Court of Punjab and Haryana has allowed petitions challenging the allotment of industrial plots in Industrial Estate, Bhiwani made by the Haryana Urban Development Authority. The petitioners alleged that the allotments were "vitiated by nepotism, favouritism and total lack of a fair and transparent procedure that could ensure fairness and objectivity"; "the successful allottees are relatives/friends and protégé of politicians and bureaucrats. They had, therefore, succeeded in getting the allotment, not on the basis of merit but because authorities allowed them to steal march over the better candidates available."

The High Court, required to test the actions of HUDA on the touchstone of constitutional parameters as enunciated by the Supreme Court made a reference to various time-tested decisions of the Supreme Court [Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489; Kasturi Lal Lakshmi Reddy v. State of J & K (1980) 4 SCC 1; New Horizons Ltd. v. Union of India, (1995) 1 SCC 478; Sachidananda Pandey v. State of W.B. (1987) 2 SCC 295; Haji T.M. Hassan v. Kerala Financial Corporation (1988) 1 SCC 166; Netai Bag v. State of W.B, (2000) 8 SCC 262] to cull out the principle of law as under;

(a) The State ought to dispose of public property by way of public auction or by inviting tenders as an ordinary rule. But if the State chooses to act otherwise, it has to act fairly and reasonably and action of the State must exclude arbitrariness;

(b) In case the State opts to make an exception to the general rule of disposing the property through public auction or by inviting tenders, the procedure followed should be so transparent that it overrules an impression of bias, favourtism or nepotism;

(c) In all the cases, where the general rule (sale through public auction or by invitation of tenders) is not adhered to, it must be in consonance with the criterion, which satisfies the expectation that the same is fair and reasonable.

(d) The criteria should be pre-determined and published to rule out the allegation of any bias.

In this background the High Court examined the facts relating to the allotment of the plots to the successful applications to agree with the Petitioners. It observed that "a perusal of the record reveals that no comparative merit of the applicants was drawn. No exercise to compare the successful allottees and unsuccessful applicants was undertaken. The relevant factors, i.e., experience, availability of capital, qualification, managerial capability and professional skill etc. were not considered to determine inter-se merit. The committee had interviewed the applicants and on a separate sheet, had given reasons for making the allotment of plot. The reasons given are general in nature, vague and non-specific. The reasons spelt out are such that they can stick to any applicant, to whom the committee wanted to make allotment."


The High Court noted that the allotment was made without evolving any criteria and without the comparison of the comparative merits of the applications. That alone, in view of the High Court, was sufficient to hold the allotment exercise invalid being contrary to the principles of law to thsi regard. The High Court also observed, "we are of the view that the committee ought to have evolved criteria for allotting marks under the different sub-heads, e.g. qualification, experience, financial strength, product, capability and skill. The allotment of marks could be on various counts. They cannot be put in water tight jackets, but the example has been given only to elaborate our view. It is admitted stand of the official respondents that no comparative table or merit-list was drawn in case of all the applicants, who were interviewed" ... "In the present case, the procedure for allotment was stated to be due assessment of the application/ project report, individual merit and financial capability of the entrepreneur. The project reports submitted by the applicants have not been evaluated. No criteria was adopted to find out as to which project report, submitted by the applicants, was better than the other. Similarly, there is no inter-se determination of financial capability. Some of the successful entrepreneurs had no documents to support their cases. Loans from banks and financial institutions were not tied up. No appraisal of the project reports was done by the financial institutions."


On these facts the High Court concluded as under;

The question, which we have asked ourselves, is whether the procedure adopted by the Committee that ‘allotment of plot will be after due assessment of the application/project report & on basis of individual merits/financial capabilities of entrepreneurs’ satisfies the test of rational and relevant principle, which is non-discriminatory ? It makes us conclude that until and unless each applicant was compared, it vested arbitrary power in the Committee to discriminate and say that candidate ‘A’ is better than candidate ‘B’. Thus, the procedure adopted by the Committee, in no way, can be termed as rational in answering all the requirements of Article 14 of the Constitution of India. In these circumstances, we accept the present writ petitions, quash the allotments made in pursuance of the recommendations of the Committee and direct the respondent Haryana Urban Development Authority to evolve a criteria, which is in accordance with the requirements of law and observations made by us and to re-assess the comparative merit of the applicants.

Have a look at the decision.

Delhi Government's recent moves for the underprivileged and elderly ...

In a series of Notifications, the 'Department of Social Welfare' of the Government of National Capital Territory of Delhi has notified various rules for the underprivileged sections of the society. The Government has notified the following recently;

1. The Financial Assistance to Persons with Special Needs Rules, 2009
2. The Old Age Assistance Rules, 2009
3. The Delhi Family Benefit Scheme Rules, 2009.

As these schemes entail, the Financial Assistance to Persons with Special Needs Rules, 2009 has been notified with the aim;

1. To facilitate the care of children with special needs, acknowledging the high cost of care giving.

2. To facilitate training and employability of persons with disability, so that they may fulfil their role and potential in society and lead a life of dignity.

3. To help ensure survival of the person with special needs and their family.

In this regard the Rules provide for financial assistance is being provided to those carrying various forms of disabilities (as specified in the Rules) to the tune of Rs. 1,000/- per head per month in terms of the Rules. [Have a look at the Notification]

The Old Age Assistance Rules, 2009 are enacted with the underlying objective "to provide social security by way of financial assistance to destitute, old persons, who are without any means of subsistence and nobody is there such position to support them in the evening of their lives." In this regard the Rules provide that those with the age of 60 years and above and not receiving any other assistance may apply for a special allowance to the tune of Rs. 1,000/- per head per month. [Have a look at the Notification]

The Delhi Family Benefit Scheme Rules, 2009 have been notified with a view "to provide social security and financial assistance to the family members’ of deceased primary-bread winner, male or female of a household who are without adequate means of subsistence." This scheme provides that a family benefit of Rs. 10,000 will be paid to a surviving member of the household of the deceased who is ascertained to be the Head of the household after due local enquiry. The payment shall be a ‘one-time payment, lumpsum’ remitted by an account payee cheque. [Have a look at the Notification]

One can only hope that this good step in the right direction will be of some use to the underprivileged.

WMA prescribes Guidelines on 'Conflict of Interest' of Doctors

In its recently concluded General Assembly meeting held at Delhi, the World Medical Association has issued guidelines for physicians’ behaviour on issues of conflict of interest and their relationship with commercial enterprises. "These identify areas where a conflict of interest might occur during a physician’s day-to-day practice of medicine, and seek to assist physicians in resolving such conflicts in the best interests of their patients." Provision was also made to the aspect of "physicians receiving sponsorship or gifts when attending conferences or conducting research".

The Guidelines on 'Conflict of Interest' cater to five specific instances wherein conflict of interest could arise. These relate to (i) research - as "the interests of the clinician and the researcher may not be the same. If the same individual is assuming both roles, as is often the case, the potential conflict should be addressed by ensuring that appropriate steps are put in place to protect the patient, including disclosure of the potential conflict to the patient." In this regard the WMA inter alia prescribed that "Research should be conducted primarily for the advancement of medical science. A physician should never place his or her financial interests above the welfare of his or her patient. Patient interests and scientific integrity must be paramount. All relevant and material physician-researcher relationships and interests must be disclosed to potential research participants, research ethics boards, appropriate regulatory oversight bodies, medical journals, conference participants and the medical centre where the research is conducted."

On the aspect of (ii) education, the WMA prescribes that "The educational needs of students and the quality of their training experience must be balanced with the best interests of patients. Where these are in conflict, the interests of patients will take precedence" where "while recognizing that medical trainees require experience with real patients, physician-educators must ensure that these trainees receive supervision commensurate with their level of training." As regards (iii) Self-referrals and fee-splitting - WMA describing its broad ambit denounced this practice in as much as it stated, "Referral by physicians to health care facilities (such as laboratories) where they do not engage in professional activities but in which they have a financial interest is called self-referral. This practice has the potential to significantly influence clinical decision-making and is not generally considered acceptable unless there is a need in that particular community for the facility and other ownership is not a possibility (for example, in small rural communities). The physician in this situation should receive no more financial interest than would an ordinary investor."

Dealing with (iv) Physician offices, WMA was of the view that "The physician should not receive any financial compensation or other consideration either for referring a patient to these services, or for being located in close geographical proximity to them. Physician-owned buildings should not charge above-market or below-market rates to tenants." As regards (v) Organizational/institutional conflicts it was acknowledged that "Health care institutions in particular are increasingly subject to a number of pressures that threaten several of their roles, and many academic medical centres have begun to identify alternate sources of revenue." Therefore it was proposed that "policies should be in place to ensure that these new sources are not in conflict with the values and mission of the institution (for example, tobacco funding in medical schools)."

To remove all doubts (and perhaps to disallow lawyers to read the document like a statute) the guidelines also stated that "Each doctor has a moral duty to scrutinise his or her own behaviour for potential conflicts of interest, even if the conflicts fall outside the kinds of examples or situations addressed in this document. If unacknowledged, conflicts of interest can seriously undermine patient trust in the medical profession as well as in the individual practitioner."

As regard the "Relationship between Physicians and Commercial Enterprises" the WMA acknowledged that "conflicts of interest between commercial enterprises and physicians occur that can affect the care of patients and the reputation of the medical profession. The duty of the physician is to objectively evaluate what is best for the patient, while commercial enterprises are expected to bring profit to owners by selling their own products and competing for customers. Commercial considerations can affect the physician's objectivity, especially if the physician is in any way dependent on the enterprise" and in this regard prescribed various detailed guidelines in regard to (i) attendance in 'Medical Conferences', (ii) receiving 'Gifts' from medicine manufacturers, (iii) conducting 'Research', and (iv) 'Affiliation with Commercial entities'. Have a look.

Punishment to be proportional with the offence committed: Supreme Court

In a recent decision has the Supreme Court has emphatically declared that the award of punishment for commission of offences should be proportional and commensurate with the gravity of offence committed. The Supreme Court declared, "The general policy which the courts have followed with regard to sentencing is that the punishment must be appropriate and proportional to the gravity of the offence committed. Imposition of appropriate punishment is the manner in which the Courts respond to the society's cry for justice against the criminals. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime."

The Court further observed,

In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.

It was the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.

The Court was dealing with the challenge to the two year rigourous imprisonment granted to accused who had been convicted for the offence of 'attempt to commit culpable homicide' under Section 308 of the Indian Penal Code for assaulting one with lathis and causing injuries to the head. The Supreme Court noted the declaration of the law on the aspect of quantum of punishment its recent decision as under;

Recently, this Court, in Gurmukh Singh v. State of Haryana, JT 2009 (11) SC 122 = 2009 (11) SCALE 688, enumerated the various considerations which will be taken into account while determining the sentence which read as under:

"24. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:

a) Motive or previous enmity;

b) Whether the incident had taken place on the spur of the moment;

c) The intention/knowledge of the accused while inflicting the blow or injury;

d) Whether the death ensued instantaneously or the victim died after several days;

e) The gravity, dimension and nature of injury;

f) The age and general health condition of the accused;

g) Whether the injury was caused without pre-meditation in a sudden fight;

h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

i) The criminal background and adverse history of the accused;

j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;

k) Number of other criminal cases pending against the accused;

l) Incident occurred within the family members or close relations;

m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?

These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused."

For these reasons and taking note of the fact that the "trial Court as well as the High Court, taking note of the enmity and intention of the accused and nature of injuries, evidence of both oral and documentary and medical evidence, concluded and awarded punishment" upheld the punishment awarded to the accused and declined to interfere.

Have a look at the decision.

No RTI on voting information: High Court

In an eleborate and comprehensive decision, the Delhi High Court has recently allowed the petition filed by the Election Commission of India challenging the order passed by the Central Information Commission under the Right to Information Act directing the Election Commission to disclose information relating to ballots/votes cast on Electronic Voting Machines (EVMs) and discripancies, if any, in the counting of EVMs etc. The High Court inter alia held that even though the Right to Information Act was a specific overriding law directing all public authorities to disclose all information accessible to it, since the information relating to ballots cast in election was not accessible to the Election Commission, the Right to Information Act had no application and thus the information could not be sought. 

In coming to the conclusion, the High Court notes the election procedure and the powers of the Election Commission and its officers relating to the ballot information as under;

Each EVM has a balloting unit and a control unit. Data of the votes polled is stored in the control unit. After polls, the data stored in the control unit is encoded for counting of votes which is done in the presence of the candidates or their election/counting agents. Thereafter, entries are made in Form nos.17C and 20 and the poll result in form of a result-sheet is announced. After the counting is over and the results are announced, the control units are sealed following the procedure mentioned in Election Rule 57C ...

... under the Election Rules, the production, inspection and disposal of ballot papers/ EVMs is subject to and controlled by Rules 92, 93 and 94. ... Rule 93 stipulates that ballot papers in physical form cannot be inspected or produced before any person or authority except under the order of a competent court. Rule 93(1A) which deals with data stored in the control unit in electronic form, states that the control unit cannot be opened, inspected or produced before any person or authority except upon an order of a competent court. Use of the word “shall” in said Rule; “shall…not opened except under the orders of a Competent Court..”, makes the provision imperative or obligatory.

The object and purpose behind these Rules is to maintain utmost secrecy and confidentiality of the ballot papers and the control unit which contains the information regarding the votes polled, the votes secured by each candidate in a polling station etc. Such information is kept secret to maintain confidentiality, and secure information relating to voters, pattern of voting etc. and avoid unnecessary petitions based on mere apprehensions and unfounded grounds. Ensuring confidentiality and secrecy of the votes polled is sacrosanct in elections by a secret ballot. This is necessary to protect the electorate from any reprisal or adverse consequences for voting in a particular manner or for a party/candidate. The object is that the said material should not be accessible unless a Competent Court for valid reasons directs disclosure or inspection.

The contention of the respondent no. 2 that the restriction contained in Rule 93 is of limited nature and applies only when the election papers are in custody of the District Election Officer and once it is outside his control, the restriction or bar no longer operates is not correct. The Rules do not authorize the Election Commission to access and disclose information/data stored after expiry of any period. Prohibition continues till destruction. Opening of seals and inspection require order of a competent court.

... Retention and disposal of the EVMs, an administrative act, exercised by the Election Commission, is aimed at avoiding technical delays and problems due to non-availability of the EVMs; retaining sealed papers/units and maintain confidentiality over a length of time. Thus, even though, the Election Commission has the power under Rule 94 (2)(aa) to retain or dispose of the voting machines, but that by itself does not expand Election Commission‟s power and negate the requirement of an order of a competent court under Rule 93.

Dealing with the aspect of confidentialty of votes, the High Court notes the settled legal position to this effect;

The Supreme Court has interpreted Rule 93 in various cases. In Ram Sewak Yadav versus Hussain K. Kidwai, (1964) 6 SCR 238, it was observed that ballot papers may be inspected only under an order of a competent court/tribunal, but other documents are open for public inspection subject to certain conditions. An order for inspection should not be granted as a matter of course, on mere allegations and vague pleas made in the petition. In Bhabhi versus Sheo Govind and others (1976) 1 SCC 687, after considering earlier judgments, the Supreme Court observed that inspection of the ballot papers cannot be allowed in order to indulge in a roving inquiry or in order to fish out materials for declaring elections to be bad. The primary aim of the courts is to do justice to the parties balancing the respective rights and interest and accordingly it was held that the following conditions are imperative before inspection of ballot papers can be allowed. ...

Underlying principle behind the aforesaid judgment is to protect secrecy and confidentiality of ballots, unless there are compelling and justiciable reasons why in a particular case inspection of ballot papers should be allowed and this requires an order of a competent court/tribunal. Thus, vague or indefinite material even if involving bold and serious allegations, cannot be a ground to overlook principles of secrecy and confidentiality attached to ballot papers. The aforesaid principle was again reiterated in V.S. Achutanandan versus P.G. Francis and another (2001) 3 SCC 81 wherein it was emphasized that it is for the applicant to prima facie establish existence of grounds justifying examination of the ballot papers.

On the interaction between the two laws i.e. Right to Information Act and Representation of Peoples' Act, the High Court noted;

REP Act is prior in point of time and in case of conflict with any provision of the RTI Act, the latter Act will prevail. Further the Rules framed under the REP Act are subordinate legislation and in case of conflict between the provisions of the said Rules and the RTI Act, the RTI Act will hold the field and has to be applied. However, Section 22 of the RTI Act is triggered and is applicable if there is a conflict between REP Act, the Election Rules and the RTI Act. Albeit, where there is no conflict between the two statutory enactments, Section 22 of the RTI Act is not applicable. ...

Section 2(f) of the RTI Act defines information as material in any form accessible to a public authority under any other law i.e. an enactment other than the RTI Act. Section 2(j) defines “right to information” as “information accessible under the RTI Act which is held by or under the control of the public authority”. The words “information accessible under this Act” used in Section 2(j) can cause ambiguity, if read in isolation. But on a harmonious reading of the two definition clauses, the words “accessible under this Act” have reference to Section 2(f) of the RTI Act otherwise the two definition clauses will be mutually contradictory. The term “Right to information” should be defined with reference to the term “information”. The words “information accessible under this Act” in Section 2(j) will mean information which is accessible to a public authority and not information to which the public authority is denied access. The “right to information” is subject to the provisions and exemptions under the RTI Act and therefore legislature has used the words “information accessible under this Act” while defining “right to information” under Section 2(j).

The words “under the control of a public authority” as per their natural meaning imply right and power of the public authority to have access to the said information. Wharton‟s Law Lexicon (15th edition) defines the word “held” as “to have the ownership or use of: keep as one‟s own”. In Stroud‟s Judicial Dictionary (4th edition) it is observed that in legal parlance the word “held” means to possess “legal title”. words “held by” in section 2(j) in the context of the RTI Act will include not only information under the legal control of the public authority but also all information which is otherwise available with them. The public authority should have dominion over the information or semblance of the right to the material which constitutes information. The words “held by or under the control of an public authority” are to be given a broad and wide meaning but at the same time cannot include information to which access is denied to a public authority itself under any other statutory enactment. If there is a prohibition or bar under an enactment and the public authority is disabled and prevented access to material or information, the bar or prohibition is not undone or erased by the RTI Act. Similarly, if there is a pre-condition before a public authority can access information under any other enactment, the said pre-condition should be satisfied. Right to information from a public authority requires the public authority‟s corresponding right to access the said information. If there is an absolute or complete bar on the public authority‟s right to access information then such information cannot be supplied and if there is a partial bar or pre-condition, then the pre-condition should be satisfied before information is furnished.

Thus, to word it differently, material/details to which the public authority has access must be furnished, subject to the exemptions under the RTI Act. However, if the public authority is denied access or cannot have access to due to any limitation or restriction under a statute, the material does not constitute „information‟ under the RTI Act. Once statutory precondition for access by the public authority to material/details is satisfied, the material/details are “information” within the meaning of section 2(f) and a citizen has a right to access “information”. The requirement is that the public authority should have right to access information which is “held by or under the control of any public authority”.

Any other interpretation of the foregoing sections of the RTI Act, will lead to incongruous and unacceptable results, with a statutory protection or prohibition in another enactment being nullified by filing an application under the RTI Act. The legislature has therefore in Section 2 (f) of the RTI Act, carefully used the words “accessed by a public authority under any other law” before a right to information accrues and information is “held by or under the control of any public authority.” Where a public authority is disabled till satisfaction of certain conditions or is prohibited from having access to any information, the provisions of the third enactment continue to apply and are not re-written or over-written by the RTI Act.

When information is accessible to a public authority and is held or under its control, then the information must be furnished to the information seeker under the RTI Act, even if there are conditions or prohibitions under another statute already in force or under the Official Secrets Act that restricts or prohibits access to information to public. Prohibition or conditions which prevent a citizen from having access to information in view of the non obstante clause in Section 22 of the RTI Act do not apply. Restriction on rights of citizens is erased. However, when access to information by a public authority itself is prohibited or is accessible subject to conditions, then the prohibition is not obliterated and the pre-conditions are not erased. Section 22 of the RTI Act is a key which unlocks prohibitions/limitations in any prior enactment on right of a citizen to access information accessible to a public authority. It is not a key with the public authority that can be used to undo and erase prohibitions/limitations on the right of public authority to access information.

Interpreted in this manner there is no conflict between the provisions of the RTI Act and the REP Act and the Election Rules framed thereunder. As per the Election Rules, once the ballot papers or control unit or EVMs is sealed, no one can have any access to the same except on an order passed by a competent court. The Election Commission does not have right to access the control unit of the EVMs, to encode or download and re-examine the data without permission of the competent court. There is a prohibition and/or restriction on the right of the public authority to have access to the information. It cannot be said that information in respect of queries which can be answered only after examining and downloading the data stored in the EVMs is “information accessible” as it is “held by” or “under the control of” the Election Commission of India unless the conditions specified in the Election Rules are satisfied. Satisfaction of the conditions for encoding and downloading of data stored in the control unit is mandatory before the said information is said to be “held by” or “under the control” of the Election Commission of India-the petitioner herein.

Right to information is an important right. At the same time, maintaining secrecy and confidentiality of the ballot papers, etc. is also an equally valuable right. The Supreme Court has balanced the two rights when it dealt with the question of re-examination and inspection of ballot papers in its decision in Bhabhi (supra), V.S.Achuthanandan (supra) and Ram Sewak Yadav (supra). Enactment of RTI Act has not undone or negated the aforesaid principles and occasioned an absolute right to citizen of India to ask for full details of electronic data relating to ballot papers stored in the control unit of the EVMs. The Supreme Court in the aforesaid decisions has interpreted the two conflicting rights both of which are relevant to uphold democracy and Right to Freedom of Speech and Expression. ...

On legal interpretation of Section 2(j) of the RTI Act, information must be accessible and held by or under the control of any public authority. If this plea of the respondent no.2 is to be accepted then no distinction can be made between queries relating to information accessible to a public authority and information which is not accessible to a public authority or accessible on satisfaction of pre-conditions. Further, all information including confidential information relating to voting will be covered by the Right to Information and over written in view of Section 22 of the RTI Act (whether the said queries are exempted under Section 8(1) of the RTI Act is a separate aspect). Lastly, it is not as if an aggrieved party is remediless. In case a election petition has been filed, the competent court can always direct furnishing of information on being satisfied that the parameters specified by the Supreme Court for furnishing of information and re-examination of data stored in the EVMs are met.

Being of this view, the petition challenging the order of the Central Information Commission was allowed and the direction to disclose information contained in Electronic Voting Machines set aside. 

Have a look at the decision.

Code of Self Regulation in Food Advertisement released.

Coming to action, the Food Safety and Standards Authority of India has released the Concept Note on the Guidelines it seeks to notify relating to 'Code of Self Regulation in Food Advertisement'. What is intruiguing to note is that it is known that the Authority has already began to investigate and examine various food products related advertisements and their validity under the Food Safety and Standards Act of 2006.

While the Act of 2006 defines " ‘advertising’ as ‘any audio or visual publicity, representation or pronouncement made by means of any light, sound, smoke, gas, print, electronic media, internet or website and includes through any notice, circular, label, wrapper, invoice or other documents", Section 24 of the Act places restrictions of advertisement and prohibits unfair trade

practices and Section 52 and 53 of the Act prescribe the punishment for selling misbranded food and also for misleading advertisements. In this legal setting, acknowledging that "Commercial Advertisement comes within the domain of freedom of speech and expression guaranteed under Article 19 (1) (a) of the Constitution of India. The Supreme Court of India has held that commercial advertisement is a fundamental right available to every citizen under Article 19 (1) (a) of the Constitution of India subject to the requirements of Article 19 (2) of the Constitution" and also that there is no legal framework regulating advertising standards in India, the Food Authority 'Code for Self-Regulation in Advertising' drafted and implemented by the 'Advertising Standards Council of India' (a voluntary self-regulatory council, registered as a not-for-profit Company under section 25 of the Companies Act).

Further taking note of the international best practices, the Food Authority adopted the following approach for itself;

I. A perusal of the practices followed by other countries would show that the cornerstone for each of them is self-regulation guided by some handholding in terms of prescription of basic criterion by the governments/legislatures/consultative bodies respectively.

II. This is especially true for food products, owing to the vast nature, array of products and the distinct requirements for each of such products, requiring use of large number of ingredients, additives and chemicals, effect of which are varied, far reaching and dependent on number of criteria. Thus framing of specific guidelines under the Rules/Regulations would neither be practicable or efficacious for achievement of the end purpose of the legislation.

III. It is imperative that the Authority enacts broad-based guidelines on the requirements of Section 24, taking into consideration Sections 52 & 53.

IV. The FSSAI could adopt the suggested framework as a guideline and allow an independent body like ASCI to formulate the industry Code as applicable to food and beverage communications/advertisements and treat the same as benchmark for compliance with the provisions of the Act.

V. Such an approach would also allow the industry and the regulations to adapt themselves to ever-changing standards and operational/business processes.

In this background, the Authority has proposed the following guidelines to 'promote high standards in food and beverage communications and advertising';

i. Advertising and communication for food and beverages should not be misleading or deceptive. This means that claims about particular ingredients in a food and beverage product or the underlying health benefits thereto should have a sound, authentic scientific basis and supported by evidence whenever required.

ii. Advertising and/or marketing communications for food and/or food & beverage products that include what an average consumer, acting reasonably, might interpret as health or nutrition claims shall be supportable by appropriate scientific evidence and should meet the requirements of the basic Food standards laid down under the Food Safety Standards Act , 2006 and rules, wherever applicable. 

iii. Advertisements should not disparage good dietary practice or the selection of options, such as fresh fruit and vegetables that accepted dietary opinion recommends should form part of the average diet.

iv. Advertisements should not encourage excessive consumption or inappropriately large portions of any particular food. They should not undermine the importance of healthy lifestyles. Advertisements should rather try to promote moderation in consumption and the need to consume in suggested portion sizes.

v. Care should be taken to ensure advertisements do not mislead as to the nutritive value of any food. Foods high in sugar, fat, TFA and/or salt should not be portrayed in any way that suggests they are beneficial to health.

vi. The nature of the audience should be taken into account particularly when selling products in rural areas, to urban poor or to children. Advertisements and communications should not exploit their lack of experience or knowledge and always provide truthful information. In such cases, nutritional or health-related comparisons should be based on an objectively supportable and clearly understandable basis.

vii. Communications for Food and/or Beverage Products including claims relating to material characteristics such as taste, size, suggested portions of use, content, nutrition and health benefits shall be specific to the promoted product/s and accurate in all such representation.

viii. Advertisements should not mislead consumers especially children to believe that consumption of product advertised will result directly in personal changes in intelligence, physical ability or exceptional recognition unless supported with adequate scientific evidence.

ix. Advertisements containing nutrient, nutrition or health claims and advertisements directed at children should observe a high standard of social responsibility. 

x. Communications for Food and/or Beverage Products not intended or suitable as substitutes for meals shall not portray them as such. 

xi. Claims in an advertisement should not be inconsistent with information on the label or packaging of the food.

xii. Advertisements for food and beverages should not claim or imply endorsement by any government agency, professional body, independent agency or individual in particular profession in India unless there is prior consent, the claim is current and the endorsement verifiable and the agency or body named.

xiii. Celebrities or prominent people who promote food should recognize their responsibility towards society and not promote food in such a way so as to undermine a healthy diet.

xiv. Advertisements should not undermine the role of parental care and guidance in ensuring proper food choices are made by Children.

xv. Advertisers and communicators must recognize their social and professional responsibility towards promoting a healthy lifestyle and strive to achieve high standards of public health. All advertisements and communications should be thus truthful, legal, decent and honest reflecting their social and professional responsibility.

Have a look at the concept paper entailing these and further details.

No contempt for violation of undertaking: High Court

In a rather short and crisp decision, the Delhi High Court has recently held that there is no contempt of court if one of the parties refuses/avoids to carry out the undertaken given by it to court where a decision has been passed on that basis. 

The earlier case had been disposed off by the High Court "on the basis of written statement filed by the defendant, who in the written statement stated that it will not use the disputed label which looked similar to that of plaintiff and defendant proposed to use a different label". Soon thereafter another case was filed by the Plaintiff "alleging that the defendant was still using the earlier label. A local commissioner was appointed on application of the plaintiff who visited the manufacturing unit of defendant and seized 78 bottles, which plaintiff alleged to be deceptively similar to its trademark/label of plaintiff and handed over the same on superdari to defendant. Thereafter, plaintiff preferred a second contempt petition and in view of the report of local commissioner, it is pressed that defendant be punished under Contempt of Courts Act."

The High Court, however, was not persuaded. Considering the definition of the term 'civil contempt' under Section 2(b) of the Contempt of Courts Act, the High Court observed, "It is obvious that in order to constitute a civil contempt there must be a judgment, decree, directions, order, writ given by the Court of which breach is committed or there must be an undertaking given to the Court by a person which is willfully breached." 

On these facts, the High Court declined to interfere in the contempt petition as under;

In the present case, this Court did not pass any judgment in favour of plaintiff and against defendant nor decreed the suit of plaintiff nor given any directions to defendant nor passed an order in favour of plaintiff or against defendant nor issued any writ nor an undertaking of defendant was recorded. On the basis of written statement made by defendant that defendant will discontinue the use of impugned label, the suit was disposed of. In case plaintiff found that the defendant had made false statement in the W.S. and the cause of action still survived, the only remedy available with the plaintiff was to get the suit revived and obtain an order of injunction from the Court. However, no effort was made by plaintiff for getting the suit revived and plaintiff filed the present applications for contempt. Section 9 of the Contempt of Court Act provides that nothing contained in the Act is to be construed to imply that a disobedience or breach of some act is punishable under the Contempt of Courts Act which was not be so punishable apart from the Act. Thus, all disobediences are not covered under the Contempt of Courts Act. Only those disobedience are covered under Contempt of Courts act which are specifically provided under the Act. Thus, in order to constitute a civil contempt, there must exist a judgment, decree, direction, order, writ or a process of the Court or there should be an undertaking given by the defendant to the Court. Since in this case the ingredients of Section 2(b) of the Contempt of Courts Act were lacking and no order, decree or directions existed, present applications under Contempt of Courts Act would not lie. I find no force in these applications/ petitions filed under Contempt of Courts Act.

Have a look at the decision.

Chief Minister's actions unjust: High Court

Leaving no stone unturned to set an examine of the unjust conduct of the then Chief Minister of Haryana, in a recent decision the High Court has not only put on record its criticism of the mockery of rules and regulations by the elected representatives but has in fact a step ahead to grant liberty to the aggrieved person to seek compensation against the Chief Minister personally.

The High Court noticed the facts of the Petitioner as under;

Arrogance of power by the Chief Minister seems to be at play in this case. Visit of the then Chief Minister to Yamuna Nagar on 4.2.2001 with the slogan `Sarkar Aap Ke Dwar' came with a bitter pill for the petitioner. While addressing the Press conference, the Chief Minister made certain allegations against the petitioner and ordered his suspension there and then in the said press conference itself. Present days, Deputy Commissioner would hardly dare to stand and would easily buckle. The Deputy Commissioner sent a memo on 4.2.2001 for issuing formal order placing the petitioner under suspension. The Financial Commissioner-cum-Secretary meekly succumbed and obligingly issued order on 6.2.2001 placing the petitioner under suspension with immediate effect.

Having placed the petitioner under suspension, the Financial Commissioner wrote to Registrar for preparing and sending a draft charges against the petitioner. The department was, thus, on the look out for finding reason to justify the suspension as the same was ordered without any justification. As per the rules, the suspension of an employee can be ordered where the disciplinary proceeding against him is contemplated or is pending or where a case against him in respect of any criminal offence is under investigation, enquiry or trial. Chief Minister would not care to know these niceties of law and the officers would not dare to point out the same. They would rather become party to find ways and means to justify this patent illegal action. Registrar Cooperative Society, who was apparently concerned with the issue of suspension, when approached to forward draft charge sheet wrote back to the Financial Commissioner that it was not possible for his office to do so. His communication would give out the ill of this misconceived and arbitrary exercise of powers of suspending the petitioner in this manner.

According to the High Court, the actions prompted by the Chief Minister lead to a senior functionary, working as Assistant Registrar in Co-operative Society being shown disdain and humiliated in public without any officer coming to his rescue. The officers of the State are also shown in a poor light in as much as the Court observed that "they all rather became instrumental in perpetuating this arrogated illegality. This can happen in democratic set up governed by Rule of law would make it look as if we are living in some dictatorial era of archaic vintage."

The decision of the High Court notes that once having placed the person under suspension reasons were being looked for to support the suspension. To this regard the letters written by various departments to each other have been extracted in the decision. It notes, "When the petitioner approached the Financial Commissioner after seven months of the date of his suspension, the authorities seems to have woken up from slumber to make another attempt to get hold of material to justify the suspension. Deputy Registrar, Cooperative Society then wrote to Assistant Registrar for taking steps to see if the petitioner had committed any irregularity. Surprisingly, he wrote 'in case any irregularity has been committed by him or any complaint is received against him, the details with effect from November 2000 should be furnished to this office.' Thus, a search was on to find material to support suspension, which was ordered seven months earlier. What else could be a misuse of power?"

The High Court goes in further details to note the discrepancies and inconsistencies in the stand of the Government to justify the suspension as under;

The Registrar then informed the Deputy Registrar that neither any complaint was available against the above officer in the office nor had he committed any irregularity during his tenure in the office. Still the officials were to somehow prepare and serve a memo of charges to the petitioner and they did so on 27.3.2002, making some flimsy allegations. Charges reads as under:-

“1. That Shri Kanwar Bhan had only completed the inspection of 27 societies against the target number of 99 societies w.e.f 1.4.2000 to 16.2.2001 and as such he has failed to maintain his complete devotion to his duties.

2. That Shri Kanwar Bhan had registered the DPS Computers Cooperative Industrial Society keeping in view his self interest and without the prior approval of the Deputy Registrar, Cooperative Societies and as such violated the instructions of the Registrar Cooperative Societies, Haryana.”

Having served this memo of charges on 27.3.2002, the suspension order of the petitioner was revoked and the petitioner reinstated vide order dated 28.3.2002. Though this order was passed on 28.2.2002 but was forwarded only on 28.3.2002. Posting order of the petitioner was also issued. It appears that the charge sheet was issued only because the petitioner had filed Civil Writ Petition No.16025 of 2001 against his suspension order. This was disposed of on 20.3.2002 with directions to the Government. The effect of this unfair and unjust order would reveal from the subsequent events. After issuance of charge sheet and revocation of the suspension order, the petitioner submitted his reply on 5.6.2002. Nothing happens thereafter. The petitioner retires from service on 31.1.2005. The disciplinary proceedings against him initiated on this charge sheet are still pending. The petitioner submitted his application for speedy disposal of the charge sheet. He is denied all the retiral benefits. The Government even does not give any reply to the prayer made by the petitioner. No enquiry is commenced or proceeded against the petitioner. Having waited so long, the petitioner files another Civil Writ Petition No.2243 of 2007 before this Court on 6.2.2007. Division Bench of this Court directs the respondents to complete the enquiry within a period of six months from the date of receipt of copy of the order. Nothing still was done. The enquiry was not completed within the stipulated period, as per the directions. The retiral benefits of the petitioner were still not released. Having, thus, waited, the petitioner has now filed the present writ petition to seek quashing of this charge sheet and for the release of his retiral benefits.

The respondents would still make an attempt to justify their stand. Rather, they would say that writ petition is not maintainable in the present form. The petitioner is even accused of misleading the Court, as if they are fair in dealing with the petitioner. The respondents would say that the petitioner was charge sheeted under Rule 7 prior to his retirement. They would then refer to the orders dated 27.3.2002 and 15.3.2004 and would aver that the charge sheet dated 27.3.2002 was decided on 10.4.2008 and the charges made against the petitioner were dropped. Respondent make reference to another charge sheet dated 15.3.2004, which is stated to be under active consideration. Though a mention is made to the second charge sheet dated 15.3.2004, but no charge sheet is forthcoming or placed on record. It is not even disclosed as to what are the charges alleged against the petitioner in this charge sheet.

This appears to be another red-herring. In his replication, the petitioner has pointed out that this second charge sheet was never served upon him before his retirement. He had, however, received a show cause notice dated 13.7.2007 on the basis of an exparte enquiry proposing to impose 5% cut in his pension. The petitioner promptly replied to this show cause notice on 24.7.2007. The petitioner pleads that the second charge sheet, which was not served on him and the show cause notice to be fabricated one and are brought out of hat as an after thought to justify this illegal and unjustified act on the part of the respondents. The petitioner is also justified in making a grievance that first the Chief Minister had suspended him on the basis of a loose talk in the press conference and thereafter the officials of the Government have attempted to justify their own mistakes on the one pretext or the other. The petitioner would term this case to be “a proof of worst ugly look of Indian democracy”. He may be an aggrieved person but his anger is justified to refer this treatment to be an ugly face of democracy. Is not it dictatorial display of power in democratic set up? Final order is yet to be passed regarding this charge sheet. It is orally pointed out that the charge sheet is finalised on 16.9.2009. It is done without holding any enquiry or associating the petitioner in any manner. How can this be sustained in this background?

In these facts, the High Court observed as under;

The suspension of the petitioner was wholly unjustified. There is no scope of any different view in this regard from the facts as these would emerge from record. The respondents can not show any thing to justify this arbitrary order passed against the petitioner by the Chief Minister. The officials made best efforts but still failed in their attempt to justify this suspension. Even after having charged the petitioner, the respondents were left without any option but to revoke the suspension order. Could there be any justification for suspending the petitioner, when there was no charge against him. Respondents revoked the same, when they served a memo of charges. This would only show that the entire exercise undertaken on the dictates of the Chief Minister was illegal and without any justification in law or otherwise. Such arbitrary action can not be permitted go un-escaped and unchecked in a democratic set up. The Constitutional provisions are checks on the exercise of such arbitrary powers. Any arbitrary exercise of power is amenable to correction. The sweep of justice would be wide enough to mete out injustice wherever it is seen. 

What more can be said to term this order to be unjustified, when the memo of charges framed with strained efforts had to be dropped without proceedings or holding any enquiry whatsoever. An employee cannot be allowed to be treated in this whimsical manner? The casual, careless and arbitrary approach on the part of the respondents is, thus, clear and apparent from the writ petition. The petitioner, apparently was placed under suspension without any justification. The respondents thereafter could not find any material to charge sheet the petitioner. No justification was forthcoming even for this action in serving the memo of charges. It appears only to support the illegal action already taken. All this was nothing but to unduly and unnecessarily harass the petitioner. Chief Minister was bound to inform himself of the well known maxim “be you ever so high, the law is above you.” . A Chief Minister has also to act in accordance with law. If the petitioner was placed under suspension without justification, the proper course was to undo this injustice. Rather, an attempt was made to insist with perpetuating this injustice illegally. The petitioner has been maltreated, harassed and humiliated. The result is that he is yet to receive his full pension and is deprived of his right to property and in turn to his right to life and livelihood. 

The attempt to withhold pensionary benefits is again justified in another illegal manner. Thus, one illegality is following another illegality to justify the arbitrary action. The respondents would still fail in their attempt. The case reflects total non-application of mind and total surrender by senior Government functionaries. By denying pensionary benefits to the petitioner for over a period of four and a half years, the respondents have certainly deprived the petitioner of his legal and fundamental right to livelihood and his life. The provisional pension may have been a source of subsistence for the petitioner, but he certainly could not have been denied or deprived of the benefits, which would have accrued to him immediately after his retirement.

The charges first served on the petitioner have been dropped. The second charge sheet, which is referred to is without making any mention to or without disclosing the charges against the petitioner, can not also be allowed to stand. This appears to have been made just to justify the illegalities committed by the respondents.

As per the petitioner, charge sheet dated 15.3.2004 was never served upon him. This charge sheet has not been shown to the Court. It is referred to in the reply without even mentioning as to what are the allegations contained therein. Even if everything stated is taken as a gospel truth, still to order any punishment, enquiry would be needed. It is not the case that any enquiry was held. This would not only reveal another illegality but would show that a false and fabricated defence is raised to justify the illegal acts committed by the respondents with impunity. This will aggravate their illegal, unfair approach and an added reason to see them with suspicion. This will aggravate their misadventure. A charge sheet which remain unserved is not disclosed even to the Court but has remained pending for over five years and is now shown to have been finalised suddenly. It is orally brought to the notice of the Court when it is in the process of deciding the case. It would speak volumes about the unfair attitude of the respondents. It is bordering on contempt or is attempt to over-reach the Court.

What should be the fate of this charge sheet and the punishment that has followed, though informed orally, would be a question? If the conduct of the respondents is ignored even now, then it would mean that Court has given a nelson eye to this serious misdemeanour on the part of the respondents.

In view of the above, the High Court concluded thus;

The harassment, which the petitioner has faced, need to be appreciated and imagined. The respondents, thus, have made themselves fully responsible for this plight of the petitioner on account of the illegalities that have been pointed out and which the respondents have failed to justify in any cogent or reasonable manner. They all are to be held accountable for this . This would include even the then Chief Minister, who initiated this illegal process and did not intervene to correct the illegality ever thereafter. ... The petitioner, thus, is entitled to receive all the pension and pensionary benefits, which have been denied to him for almost five years by now. Since there has been unexplained delay, which is squarely attributable to the conduct of the respondents, all the pension and pensionary benefits due to the petitioner are directed to be released within a period of one month from the date of receipt of copy of this order with interest @ 10% per annum from the date these were respectively due to the date of payment. The interest awardable shall be recovered from all the officers and including the Chief Minister, who were either responsible for placing the petitioner under suspension or in perpetuating the illegality and had unnecessarily charged and harassed the petitioner. ...

A case is made out for award of adequate compensation to the petitioner for harassment, humiliation caused to him and for depriving him of his dues without justification. No justification is forthcoming for all this, whereas the charge framed in the year 2002 is dropped in 2009 after seven years for keeping the petitioner in this suspended animation stage. Liberty is, therefore, given to the petitioner to seek compensation for the harassment caused to him by approaching any appropriate Forum, including Civil Court, where he can seek this compensation even from the then Chief Minister.

Have a look at the decision.