‘Grave Misconduct’: Rajasthan HC imposes 1 Lac cost on advocate who filed original application without authorization, superimposed sign by xerox machine etc - The Daily Guardian
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‘Grave Misconduct’: Rajasthan HC imposes 1 Lac cost on advocate who filed original application without authorization, superimposed sign by xerox machine etc

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While displaying absolute zero tolerance for misconduct of any kind, we saw how just very recently on March 24, 2022, the Division Bench of Rajasthan High Court at Jodhpur in a noteworthy judgment titled TC Gupta v. Union of India in D.B. Civil Writ Petition No. 10645/2019 and cited in 2022 LiveLaw (Raj) 111 has upheld the Central Administrative Tribunal, Jodhpur order imposing Rs 1 Lac cost on petitioner-advocate. The Rajasthan High Court thus very rightly observed that the petitioner-advocate who in more than one matters, has indulged in filing Original Applications in the Tribunal as well as writ petitions in the High Court and has personally signed the pleadings etc without having been specifically authorized in this regard by the litigants which cannot be glossed over. This notable case was reserved for hearing on January 18, 2022.

To start with, this learned judgment authored by Hon’ble Mr Justice Sandeep Mehta for a Bench of Rajasthan High Court comprising of himself and Hon’ble Mr Justice Vinod Kumar Bharwani sets the ball rolling by first and foremost putting forth in para 1 that, “The petitioner Shri T.C. Gupta, an Advocate enrolled with the Bar Council of Rajasthan, has approached this Court by way of this writ petition for assailing the order dated 03.01.2019 passed by the Central Administrative Tribunal, Jodhpur Bench (hereinafter referred to as ‘the Tribunal’) in Original Applications Nos.368/2017 and 369/2017 whereby, the learned Tribunal, dismissed the Original Applications filed by an association in the name and style of Income-Tax Contingent Employee’s Union represented by the petitioner in the capacity of a counsel holding that Shri T.C. Gupta was acting as a de facto party in this case. Cost of Rs.1,00,000/- was imposed upon the petitioner and the matter was referred to the Bar Council of Rajasthan for necessary action against the petitioner.”

To put things in perspective, the Bench then envisages in para 2 that, “The petitioner, appearing in person, vehemently and fervently urged that the impugned order is bad in the eyes of law. Original Applications were filed by the petitioner in a bonafide manner having been engaged as a counsel by the Union and its Member Shri Mahendra Singh for espousing the cause of the casual labours engaged in the Income Tax Department. The Tribunal rejected the Original Applications in an absolutely perfunctory manner. The observations made and the findings recorded in the impugned order that the petitioner had not been authorised to represent the Union or that he had filed a fictitious resolution in support of the Original Applications, is absolutely groundless. The direction given by the learned Tribunal imposing cost of Rs.1,00,000/- upon the petitioner, is highhanded, arbitrary and unjust and hence, the same should be quashed and set aside.”

As we see, the Bench then observes in para 3 that, “Shri Sunil Bhandari, Advocate, who represents the Income Tax Department, a formal party in the proceedings, supported the order of the learned Tribunal urging that this Court has in more than one cases, already concluded that Shri T.C. Gupta has not been authorised by the so-called Income Tax Contingent Employee’s Union to file cases on its behalf. That the Original Applications were filed by Shri T.C. Gupta before the Tribunal without proper authorisation. He further submitted that Shri Gupta himself has signed and affirmed the pleadings before the Tribunal even though he is not a party and thus, the observation made by the learned Tribunal that the counsel himself de facto became the party, is substantiated by the admitted factual position. He thus implored the Court to dismiss the writ petition.”

Needless to say, the Bench then plainly puts forth in para 4 that, “We have given our thoughtful consideration to the submissions advanced at bar and, have gone through the impugned order.”

Most remarkably, the Bench then clearly points out in para 5 that, “Ex-facie, on a perusal of the order dated 03.01.2019, it becomes clear that the learned Tribunal recorded the questioned findings observing that no proper resolution authorising the filing of the Original Applications was placed on the record of the Tribunal. The Tribunal noticed the two documents having the same contents on which, there was a variation in signatures/ number of signatories. The pleadings of the rejoinder were personally verified by the counsel Shri T.C. Gupta and not by the parties. The Tribunal observed that on comparing the documents filed on different dates, it became apparent that the signatures had been superimposed by using a xerox machine on an existing document. Very serious observations have been made by the learned Tribunal on the grave misconduct committed by the counsel in Judicial Proceedings and we are in total agreement with these observations.”

Most significantly, the Bench then also without mincing any words is candid enough to forthrightly observe in para 6 that, “This Court has noticed in more than one matters that the petitioner Advocate has indulged in filing Original Applications in the Tribunal and writ petitions in this Court and personally signs the pleadings etc. without having been specifically authorised in this regard by the litigants. Reference in this regard may be had to the Judgment dated 17.11.2021 passed by this Court in D.B. Civil Writ Petition No.2893/2019 (Income Tax Contingent Union & Anr. vs. A.N. Jha & Anr. wherein, it was observed:

“Rule 7 of the Central Administrative Tribunal Rule of Practice, 1993 is reproduced here under:-

“Production of authorisation for and on behalf of an Association :- Where an application/pleading or other proceeding purported to be filed is by an Association, the person, or persons who sign/(s)/verify (ies) the same shall produce along with such application, etc., for verification by the Registry, a true copy of the resolution of the Association empowering such persons(s) to do so: Provided the Registrar may at any time call upon the party to produce such further materials as he deems fit for satisfying himself about due authorisaton.”

In light of the preliminary objections raised by the respondent counsel pertaining to maintainability of the present petition for lack of the proper authorization and following the dictum of this Court in DBCWP No. 3798/2019, whereby in terms of Rule 7 of the Rules of 1993, proper authorization/resolution is mandatorily required.

On analysis of Rule 7 and the petitioner’s failing in furnishing valid resolution/authorization, we are of the view that the present petition is not maintainable and is hereby dismissed.”

Thus, the finding of the learned Tribunal that the petitioner, who has been enrolled as an Advocate post retirement from the Income Tax Department, has acted as de facto party in Judicial proceedings cannot be faulted. The Tribunal also noticed interpolations in the documents filed on record by the petitioner who personally verified the pleadings. Hence, the learned Tribunal was perfectly justified in imposing cost quantified at Rs. 1,00,000/- upon the petitioner for such apparent misconduct.”

As a corollary, the Bench then hastens to add in para 7 that, “As a consequence, we find no infirmity, illegality or perversity in the impugned order dated 03.01.2019 passed by the Central Administrative Tribunal, Jodhpur Bench warranting interference therein in exercise of the extraordinary writ jurisdiction of this Court.” , the Bench then directs in para 8 that, “The petitioner shall deposit cost as directed by the Tribunal with the Rajasthan State Legal Services Authority within next 45 days and submit copy of receipt with the Tribunal. If the petitioner fails to deposit the cost as above, the matter shall be reported to the District Collector, Jodhpur for effecting recovery.”

Finally, the Bench then concludes by holding in para 9 that, “The writ petition lacks merit and is dismissed as such.”

On the whole, the sum and substance of the fruitful discussion as we have discussed quite in detail of this notable judgment and as we thus see also for ourselves and as is indubitably clear also that the Division Bench of Rajasthan High Court at Jodhpur has taken very strong exception to the reprehensible act of advocate filing original application without authorization and superimposed sign by xerox machine etc. Of course, it certainly merits no reiteration of any kind that this alone best explains that why the Division Bench of the Rajasthan High Court has clearly upheld the Central Administrative Tribunal, Jodhpur order imposing thereby Rs 1 lakh cost as a penalty on petitioner-advocate. There can definitely be just no denying or disputing it!

To put things in perspective, the Bench then envisages in para 2 that, “The petitioner, appearing in person, vehemently and fervently urged that the impugned order is bad in the eyes of law. Original Applications were filed by the petitioner in a bonafide manner having been engaged as a counsel by the Union and its Member Shri Mahendra Singh for espousing the cause of the casual labours engaged in the Income Tax Department. The Tribunal rejected the Original Applications in an absolutely perfunctory manner. The observations made and the findings recorded in the impugned order that the petitioner had not been authorised to represent the Union or that he had filed a fictitious resolution in support of the Original Applications, is absolutely groundless. The direction given by the learned Tribunal imposing cost of Rs.1,00,000/- upon the petitioner, is highhanded, arbitrary and unjust and hence, the same should be quashed and set aside.”

As a corollary, the Bench then hastens to add in para 7 that, “As a consequence, we find no infirmity, illegality or perversity in the impugned order dated 03.01.2019 passed by the Central Administrative Tribunal, Jodhpur Bench warranting interference therein in exercise of the extraordinary writ jurisdiction of this Court.” , the Bench then directs in para 8 that, “The petitioner shall deposit cost as directed by the Tribunal with the Rajasthan State Legal Services Authority within next 45 days and submit copy of receipt with the Tribunal.

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ON THE PLEA TO STAY THE RETIREMENT OF EXISTING MEMBERS UNTIL THE ACTUAL JOINING OF NEW MEMBERS, SUPREME COURT ISSUES NOTICE

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The Supreme Court in the case Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi v Union of India & Or’s observed in a petition till all the vacancies which arose from 2019-2022 are filled by actual joining of candidates by putting a stay on the impending retirement of all the existing Judicial/ Administrative Members of CAT the court further issued the notice.

In the plea it was stated in the petition that although 35 Judicial Members including the Chairman and 35 Administrative Members cater to 19 benches and 8 circuit benches, many benches of the Tribunals have become non functional because of the retirement of members at regular intervals as it was Preferred by Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi.

Furthermore, the petition stated the Jabalpur Bench, Cuttack Bench, Lucknow Bench, Jammu and Srinagar Bench are left with only one member either Judicial or Administrative because of which no division bench can be constituted there. As on 31st March, 2022, the Guwahati Bench has become totally non-functional as no Member is available there.

Justice Chandrachud stated by taking a note of the above submissions:

A bench can’t be constituted with one member.

Justice Chandrachud further asked to submit an up-to-date chart with regards to the number of members who are present in the various benches of CAT and ordered the counsel for the Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi to do the same.

Justice Kant further added by taking a note of the above submissions:

The members whose term is likely now to expire in Future, give the details of those members.

The benches of the Central Administrative Tribunal will become non-functional if the aforesaid situation continues for a couple of more months, more than half of the sanctioned stated in the plea.

AOR Amita Singh Kalkal, has filled a plea before the Supreme Court.

The bench of comprising of Justice DY Chandrachud and the justice Surya Kant by making a note of the above submissions ordered to issue a notice and in addition the liberty to serve the Central Agency.

The bench ordered to comply with the same and listed the matter on 13th May.

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Supreme Court upholds disciplinary action against judicial officers for showing undue favour to a party in the worst kind of judicial dishonesty

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The Supreme Court in the case Muzaffar Hussain versus State of Uttar Pradesh observed a judicial officer in Uttar Pradesh for passing orders to unduly favour certain parties for taking against the disciplinary action.

The High Court reduced the punishment as curtailment of pensionary benefits by 70% and refused to interfere with the findings and the officer approached the Supreme Court for Challenging the High Court’s verdict.

A writ petition was filed before the High Court challenging the punishment by the officer. In 2005, the Allahabad High Court initiated disciplinary enquiry against him for misconduct and found the charges to be proved. On the recommendation made by the Full Court, the State of Uttar Pradesh imposed a punishment of curtailment of his pensionary benefits by 90% to join the Central Administrative Tribunal as a judicial member in 2003, the officer took Voluntary Retirement from Service.

Supreme Court observed while dismissing the appeal that the appellant had misconducted himself while discharging his duties as a judicial officer and there was enough material and evidence to show that. to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive, and had passed the judicial orders in utter disregard of the specific provisions of law.

The bench of Justice Bela Trivedi, an judgement authored noted:

the public servants are like fish in the water, none can say when and how a fish drank the water”. A judge must decide the case on the basis of the facts on record and the law applicable to the case and if he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion. The extraneous consideration for showing favour need not always be a monetary consideration further she said that In our opinion, showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct.

while being the Additional District Judge at Agra during 2001 to 2003, the officer named Muzaffar Hussain and the charge was that in a batch of land acquisition matters in violation of settled principles in order to unduly favour certain subsequent purchasers had exorbitantly enhanced the compensation.

Thereafter the Apex Court added that under Article 235 of the Constitution of India the High Court had perfectly justified in exercising its supervisory jurisdiction, under these circumstances.

The division bench comprising of justice DY Chandrachud and the justice Bela M Trivedi observed under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct and that showing undue favour to a party.

The Court stated, the case must be decided by the Judge on the basis of the law applicable to the case and the facts on record. He is not performing his duties in accordance with law if he decides the case or extraneous reasons.

Supreme Court observed while dismissing the appeal that the appellant had misconducted himself while discharging his duties as a judicial officer and there was enough material and evidence to show that. to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive, and had passed the judicial orders in utter disregard of the specific provisions of law.

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ONCE CIRP IS ADMITTED AND MORATORIUM IS ORDERED THE SARFAESI PROCEEDINGS CANNOT BE CONTINUED AGAINST CORPORATE DEBTOR: SC

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The Supreme Court in the case Indian Overseas Bank vs RCM Infrastructure Ltd observed that once the CIRP is initiated and the moratorium is ordered, the proceedings under the SARFAESI Act cannot be continued.

the appellant Bank could not have continued the proceedings under the SARFAESI Act once the CIRP was initiated and the moratorium was ordered as Section 14(1)(c) of the IBC has an overriding effect interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act is prohibited with respect to any other law, any action to foreclose, to recover or to enforce any security, the court observed in view of this provision.

It was further being observed and was stated clearly that once the CIRP is commenced, there is complete prohibition for any action created by the Corporate Debtor to foreclose, recover or enforce any security interest are prohibited with respect of its property. All the actions including any action under the SARFAESI Act to foreclose, to recover or to enforce any security interest are prohibited, after the CIRP initiate, the legislative point is clear at this, the bench observed while referring to Section 14 and Section 238 of the IBC.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

under Section 10 of the Insolvency and Bankruptcy Code, 2016, an application was filled by the Corporate Debtor before NCLT. On 03.01.2019, the NCLT admitted the petition and a moratorium was also notified the auction was continued by the bank the auction proceedings and accepted the balance 75% of the bid amount and completed the sale, even after that. The NCLT passed an order setting aside the sale, while allowing the application filled by the Corporate Debtor and the appeal filled by the Bank was dismissed by the Bank and thereafter the bank approached the Apex Court. As to recover the public money availed by the Corporate Debtor, an E-­auction notice came to be issued by the Bank.

The bench comprising of Justice L. Nageswara Rao and the justice B R Gavai observed that in respect of its property including any action under the SARFAESI Act is prohibited in such a situation, any action to foreclose, to recover or to enforce any security interest created by the Corporate Debtor.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

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Supreme Court pulls up the state of Kerala for challenging the seniority of upper division clerk

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The Supreme Court in the case The State of Kerala and Or’s. V. Subeer N.S. And Anr observed assailing the Kerala High Court’s order of affirming the seniority of an upper division clerk for filling a Special Leave Petition pulled up the State of Kerala.

The Government lost sight of these aspects while issuing Annexure-A13 order ratifying Annexure-A10 decision of the Director of Public Instruction on Annexure-A5 complaint was undertaken by the Director of Public Instruction, who has no authority to take a decision invoking Rule 27B of Part II KS & SSR based on the review of the Seniority the Director of Public Instruction and the Government while issuing the impugned orders, none of these aspects wee considered to Annexure-A3 final seniority list also by any of the aggrieved persons except a bogus complaint submitted as Annexure A5, that too almost 3 years after the finalization of the seniority list and there was no objection and further there was no objections to the rank and seniority assigned to the applicant in the provisional seniority list. the said seniority is finalized after publishing a provisional seniority list and inviting objections if any to the same as early as on 8th March 2009., the bench observed While affirming the view by KAT.

The said mistake was brought to the notice of the authorities, necessary corrective action was taken and the applicant’s seniority was reassigned based on his eligibility on the part of the controlling officer it is only by a mistake that he was granted promotion and was assigned the rank in the seniority list, the counsel said to further persuade the bench.

The Bench of Justice Chandrachud remarked that if the counsel feels there is an error you must rectify the error correctly and there was no fraud on his part and all this must be due on a reasonable dispatch.

The bench comprising of Justice DY Chandrachud further observed and noted when the matter was called upon hearing before the bench that the State is here challenging it the bench further remarked by saying that why don’t you do something better? Build schools, roads or infrastructure as one upper division clerk has got seniority.

respondent’s seniority was revised to the date on which he rejoined duty after the leave and the respondent was on leave without allowance at the time of his promotion as U.D Clerk, the counsel appearing for the State contended before the Court.

The Bench comprising of Justice DY Chandrachud and the justice Surya Kant orally remarked while dismissing the SLP against the order dated 01.17.2022., We are not a court of law but a court of justice as well.

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A PLEA IN SUPREME COURT CHALLENGES THE CHANGED NEET-SS 2022 EXAM PATTERN

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The Supreme Court in the case Dr Richa Verma v. National Board of Examination observed the changed examination pattern which would now be comprising of 150 questions from the general i.e., the basic component of the primary feeder broad specialty subject and from all sub- specialty/systems/component of that primary feeder broad specialty subject. A plea filled in the Supreme Court by MD Radiation Oncologists and MD Anaesthesiologists NEET SS 2022 aspirant.

the petitioners have sought issuance of directions to restrain the NBE from excluding / MD Radiotherapy from the eligible feeder specialties for the super specialty course of DM Medical Oncology for NEET SS 2022 and have further sought for restoring the scheme/pattern for the exam further the petitioner deleting the MD Radiation Oncology, against this backdrop.

On 05.10.2021 the Central Government had told the Court that the revised pattern will be implemented only from next year and it may be noted that over the eleventh-hour changes brought to the NEET-SS 2021 pattern after facing the harsh criticism from the Supreme Court.

The petition further states that they will have to compete with candidates who have 100% questions from their postgraduate syllabus/ broad specialty as the new examination scheme is making some candidates write a paper which has no questions from their postgraduate broad specialty.

particularly in favor of MD Medicine in so far as the choice of options is far greater vis-a-vis the choices available to either MD Radiation Oncology or MD Anaesthesia, the pattern is not just a waste of time and effort for all those who have prepared for Critical Care but also grossly biased against few broad specialties and of the other four post-graduate branches there will be no questions from broad specialties.

This is complete waste of time, resources and effort put by the candidates who have been preparing for a super speciality subject for years as it is arbitrarily, illogical, highly partial and unreasonable, while terming the change in pattern, the contentions made by the petitioner.

the new pattern was forcing all the candidates from the broad specialties to write a single paper which will have 100% questions from General Medicine, stated by the petitioner. Furthermore, contending that the erstwhile pattern had a paper with 40% mixed questions from all the broad specialties and 60% questions from Critical Care (i.e., the super-specialty subject) which had ensured a level playing field.

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THE CRIMINAL PROCEEDINGS UNDER SECTION 482 OF THE CRPC CANNOT BE QUASHED MERELY ON THE GROUND THAT NO USEFUL PURPOSE WILL BE SERVED: SUPREME COURT

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The Supreme Court in the case Satish Kumar Jatav vs State of Uttar Pradesh observed that while by prolonging the proceedings of the case, the criminal proceedings cannot be quashed. As when a clear case is made for the offence alleged on the ground that no useful purpose will be served.

under Sections 307, 504, 506 of the IPC and 9 Section 3(10)(15) of the Act, the serious allegations for the offences were made and while considering the application under Section 482 Cr.P.C. and quashing the criminal proceedings for the aforesaid offences, the High Court ought to have been more cautious and circumspect. on how the order passed by the learned Magistrate summoning the accused was wrong and/or erroneous, has not at all being allowed by the High Court. the application under Section 482 Cr.P.C. and has quashed the criminal proceedings is deprecated in the manner in which the High Court has disposed of further the High Court has observed in the proceedings of the case that no useful purpose will be served. The aforesaid cannot be a good ground and/or a ground at all to quash the criminal proceedings when a clear case was made out for the offences alleged, appeared while quashing the criminal proceedings by the High Court even for the impugned order passed, the bench overserved while allowing the appeal.

The application under Section 482 Cr.P.C The manner in which the High Court has disposed and quashed the criminal proceedings is not appreciated at all Furthermore the Court has emphasized that the High Court must pass a speaking and reasoned order in such matters. The same has been set aside by the High Court in a most cursory and casual manner.

The allegations made against the accused persons and even on the legality and validity of the order passed by the Magistrate summoning the accused, has not been discussed by the High Court the Court noted.

The appellant contended that there are no reasons whatsoever have been assigned while quashing the criminal proceedings and further the appellant contended that there is no independent application of mind by the High Court. The respondent defended the impugned order, on the other hand before the Apex Court.

the Allahabad High Court quashed the criminal proceedings merely opining that “that no useful purpose shall be served by prolonging the proceedings of the case, while allowing the petition filled by the accused challenging this order and the offences punishable under Sections 307, 504, 506 of the Indian Penal Code and Section 3(10)(15) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the accused to face the trial the Magistrate summoned the accused in the present case.

The bench comprising of Justice MR Shah and the justice BV Nagarathna observed and reiterated under Section 482 of the Code of Criminal Procedure that a High Court must pass a speaking and reasoned order while disposing petitions.

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