The Office of Advocate General Odisha:
Dangerous signals ( Part-1)
The news that Sri Ashok Kumar Parija, the incumbent AG
of Odisha appeared as the counsel for the petitioner KIIT (Kalinga Institute of
Industrial Technology) Bhubaneswar, a private body and could secure a stay
order from the Orissa High Court on the operation of a 92-page,
exhaustively-reasoned-out Decision of a statutory authority called Odisha
Information Commission, has in fact stupefied many an informed quarters including
the legal fraternity at large in Odisha and beyond. In the WP (C )
No.25922/2021, the stay order as sought for by the petitioner KIIT was granted
by a single-member Bench of Justice Sri Biswanath Rath on 27.08.2021, only
after hearing Sri Parija, who, strangely enough, appeared not in his official
capacity as AG of Odisha, but as a Senior Advocate of the Odisha Bar. Be that
as it might, from the cut-and-dried stay order so passed, it is not possible to
ascertain either the grounds availed by Sri Parija or the rationale that worked
behind the Judge’s Order itself.
Granted that a Judge of the High Court enjoys the
discretion of issuing an interim stay order, the points at issue which perturb
the legal literati and political pundits across the state and beyond are
quintessentially the twin as follows: (1) Whether a person such as Sri Ashok
Parija sworn-in as the Advocate General under Article 165 of the Constitution
to serve as the chief legal officer for the state is a Janus-faced entity,
exceptionally privileged with a personal discretion to act at one moment in his
official capacity as the AG for the State and at the next moment as mere Ashok
Parija in the private capacity of a Senior Advocate? Precisely speaking, does
the Constitution allow a split persona in respect of the AG of a State? And,
(2) Given the fact that Sri Ashok Parija, who acts and stays as the AG for a
State and that too during the pleasure of Governor the head of the state, can
he favour a non-state private body such as KIIT which is engaged in running
mega business concerns around both general and technical education, and go
against the reasoned-out Order of a statutory authority called Odisha
Information Commission, which is a state entity within the meaning of Article
12 of the Constitution? Precisely speaking, the question is, whether the AG of
a State, who is solely meant to act ‘for the State’ (vide the title of Article
165), can act against a state entity and that too, only to favour a private
entity?
Before the cardinal issues
at hand as framed above are taken up for an in-depth critique in the light of
constitutional and statutory provisions that are in place, it is worth taking a
quick glance at the rival Parties mentioned in the cause list of the High
Court’s Interim Order dated 27.08.2021. The Petitioner was the KIIT,
Bhubaneswar, which, as learnt from the KIIT’s website itself https://kiit.ac.in, was founded by one Prof Achyut Samanta in 1992 with
a humble investment of Rupees five thousand only. It was then a small NGO
running a vocational centre with 12 students and 2 staffs only, but has grown
up by now to be a massive Deemed-to-be University comprising 28 schools under 100 academic programmes for a
total of 30,000 students along with a 2500-strong faculty, accommodated in 23
world-class campuses including 16 sports complexes having swimming pools and 15
food courts- all thriving in a sprawling area of 25 sq. km called KIIT township
in the heart of the capital city of Bhubaneswar. Besides, as many as 60
countries of the world are also represented in its student population. As per
the admission of the KIIT, they could reach to such an outstanding position due
to the generous contribution of land, grants and other resources from both
Government and non-Government sources including several foreign countries. As a
matter of fact, such piecemeal information extracted from the KIIT’s colourful
website are only a miniscule of the massive inventory of world-class
excellence, eminence and expertise that the KIIT supposedly commands as per the
said website. Above all, as learnt from the impugned order of OIC dated
05.08.2021, KIIT has also appointed Public Information Officer and First
Appellate Authority as required on the part of a Public Authority under RTI Act
2005, but has all along refused to disclose any information to any information
seeker under the said Act. That is the ruse and riddle around which the
controversy around KIIT has been raging all through and still refuses to
subside despite the recent Stay Order from the Orissa High Court that Sri Ashok Parija a Senior Advocate could
avail to the benefit of his illustrious client albeit at a great risk to his
official incumbency as the AG of Odisha.
As to the opposite parties as described in the cause
list of the said HC order, they were Odisha Information Commission and another.
As is well known, the OIC is a statutory authority established under Section 15
of RTI Act 2005 enacted by the Parliament with a view to bringing transparency
and accountability in the functioning of the State and its organs, legislative,
executive and judiciary and thereby building up an informed citizenry that can
contain corruption and mal-governance plaguing the whole system. The ‘Another’
Opposite Party, though not named in the HC Order was none else than a common
citizen like you and me, namely Sri Pradip Pradhan, whose 2nd appeal
made before the Information Commission supplemented by his numerous submissions
made during the years of adjudication, had ultimately persuaded the then Chief
Commissioner Sri Sunil Kumar Mishra to declare the KIIT a deemed Public
Authority within the meaning of Section 2(h)(ii) of RTI Act and accordingly
liable to make disclosure of information relating to itself and its
multifarious activities to the information seekers as required on the part of a
deemed public authority under RTI Act 2005.
Strangely enough, this very Order of the Chief OIC
vide SA No. 228/2015 dated 05.08.2021, apparently a just and reasonable one,
did however prove a millstone around the KIIT’s neck, under the unbearable
pressure of which the latter in no time rushed to the Orissa High Court and AG
of Odisha Sri Ashok Parija to rescue him from the risky label of a ‘public
authority’ which the Commission’s decision sought to endow on it. One feels
utterly bemused as to why did KIIT’s founder Sri Samanta, to start with and
subsequently the AG of Odisha Sri Parija took the OIC’s decision as an
incorrigible affront to their self-cultivated wisdom, when the RTI query raised
by Sri Pradhan way back on 01.09.2014- so to say, the prime mover of thewhole
episode culminating in HC’s Stay Order dated 27.08.2021 - was so simple and
innocuous one, i.e. “information regarding
appointment of Ex-State and Central Government employees in KIIT University and
its allied institutions”. It seems to be all the more quixotic on their part to
keep on stubbornly refusing to share such a stupid piece of information with
public, when the KIIT’s website itself is abuzz and agog in respect of a massive
2500-strong faculty of scholars and researchers par excellence.
Part-2
Confusions are galore among the legal fraternity,
media circles and as well independent intelligentsia across the spectrum,
firstly as to whether the OIC (Odisha Information Commission), against whose
Order the learned AG Odisha Sri Ashok Parija was briefed by a private body
called KIIT to argue, albeit in his personal capacity, before the honorable
Orissa High Court, is a state entity within the meaning of Article 12 of Constitution
or not, and secondly, if so, whether it is a state entity operating within the
jurisdiction of the State of Odisha or not. A cogent answer to the 2nd
ponderable, does in fact hold the key to addressing to the central
problematique i.e. whether the said act of Sri Parija as the incumbent AG of Odisha
did anyway conform to the letter and spirit of law laid down in Article 165 of
the Constitution- the very article owing to which Sri Parija enjoys his present identity as the
tallest law officer of Odisha state and his special rights and absolute immunities
equal to that of a Minister, for partaking in any legislative proceeding of the
state (vide Articles 177 and 194), not to speak of his fabulous remuneration
that the Governor might allow to his satisfaction, along with a host of perks
and privileges attendant on his eminent constitutional office.
The special concern that prompted this self-inspired
author to look in depth into the above mentioned ponderable is a critical riposte
by a former comrade of mine on Face-book, which justified the appearance of
Odisha AG Sri Parija for a private party as against a state entity, quoting the
ground of a precedent set by the immediately preceding AG Sri Surya Prasad
Mishra who, according to him, had appeared for a private party in dispute with a
state entity called NHAI (National Highway Authority of India). Without going
into the factuality or otherwise of this case, this author has no hesitation at
all in saying, were it a fact that the former AG of Odisha Sri Mishra stood
against NHAI (a state entity) in favour of a private party, he has committed no
mischief, for the simple reason that NHAI is a state entity operating, as its
nomenclature suggests, as an instrumentality of the Central Government, whereas
the Odisha Information Commission, which, as we shall see in detail, is a state
entity operating as a quasi-judicial, statutory authority within the
jurisdiction of the State of Odisha. There are umpteen cases one can cite where
the earlier AGs and even present AG of Odisha have fought against the Central
level state entities and also against other state governments and their
instrumentalities, and that is exactly what they are mandated to do in their statutory
capacity of Advocate General for the State of Odisha. For instance, in the
landmark case around Niyamgiri vide WP (C ) No. 180 of 2011 that was decided by
the Supreme Court on 18 April 2013, two state actors, namely Orissa Mining Corporation
Ltd ( a state instrumentality of the State of Odisha) and Ministry of
Environment and Forests (a state instrumentality of Government of India) fought
against each other and then AG of Odisha had, obviously enough, taken the side
of OMC running counter to the Min. of E&F, GoI. More obvious is the adversarial
role that the AG of a State ought to play in a case lodged against another
State Government, such as Odisha versus Andhra Pradesh, which is now running in
Supreme Court around the disputed borders of Kotia Gram Panchayat. Thus,
precisely speaking, the bottom-line for an AG of Odisha is the inviolate maxim
that he can favour or oppose any entity private or state in a court dispute,
but certainly can’t go against the State of Odisha as such or any of its
instrumentalities. And that is exactly where the incumbent AG Sri Ashok Parija
did err and that too egregiously, maybe, due to his innocent ignoramous-ity or
his studied complicity with the concerned private business-party in lure of
some fabulous gratification, known best to him and his beneficiary-client. Either
way, Sri Parija has wrecked a terrible, nay, an undo-able disaster to the
august constitutional office of Advocate General of Odisha by embroiling it in
a conspicuous case of conflict of interest.
Now, coming to another contested issue as to whether
the Odisha Information Commission deserves the epithet of a state entity
belonging to the State of Odisha or not- raised by some senior lawyer friends-
we need to look at some salient aspects of the birth, constitution, financing
and functioning of the Commission in juxtaposition to the AG of a State, and
that too exclusively from a statutory perspective, in order to put all doubts at
rest, for good. Firstly, though the Central law i.e. RTI Act 2005 in its
Section 15 provided for the constitution of a Commission for every state, the specific
entity called Odisha Information Commission came into being by Govt of Odisha’s
I & PR Notification
No. 495/2005 dated October 29, 2005 issued
on the Order of the State Governor, just as Sri A.K. Parija was appointed as
the AG of Odisha by a Govt of Odisha Notification vide No. I-LR-AG-21.195981 dated 24.06.2019.
Then, it is the self-same Governor of Odisha who has appointed all the
Information Commissioners of Odisha [Section 15(3) of RTI Act 2005] just as all
the Advocate Generals of the State including Sri Ashok Parija the present
incumbent [Article 165(1) of Constitution]. The self-same Governor Odisha is
also the disciplinary authority in respect of both State AG [Art. 165 (3) of
Constitution] and Information Commissioners (Section 17 of RTI Act 2005) for
the purpose of removal from the office. The salaries and allowances etc payable
to the Information Commissioners and staffs of the Commission and as well the
entire expenditure for the performance of the Commission is to be borne by the
State Government (Section 16 of RTI Act 2005) just as the remuneration for the Advocate
General is sourced from the State exchequer as determined by the Governor
[Article 165(3) of Constitution]. Moreover, the functioning of Odisha
Information Commission is governed by Odisha Information Commission (Appeal
Procedure) Rules 2006 read with Odisha RTI Rules 2005 and Amendment Rules 2006,
all of which being the ultimate creatures of Odisha Legislative Assembly are doubtless
the definite instrumentalities of the State of Odisha. Thus, keeping in view
these constitutional and statutory provisions which are loud and clear, there shouldn’t
linger any misgiving in any quarter as to the fact that the Odisha Information
Commission is not only a state actor in general within the meaning of Article
12 of the Constitution, but also a state actor belonging to the domain of the
State of Odisha in particular.
Under the circumstances,
Sri AK Parija the incumbent AG of Odisha by sub-serving in disguise the KIIT, a
private business entity in opposition to Odisha Information Commission, an
established and full blown state actor belonging to the State of Odisha, has
not only profaned the office of AG Odisha, but also committed a terrible sacrilege
against the constitutional provisions governing the Advocate General for a
State .
Part-3
Not only the learned professionals belonging to diverse
fields, but also quite many law professionals hold a facile notion that the
Advocate General for a State enjoys the discretion of appearing in any case in
any court of law functioning in the State. They are sadly mistaken, if we look
at the relevant provision of Constitution which synoptically deals with such
essential matters as appointment, duties, tenure of office and remuneration in
respect of a State’s Advocate General, that is, Article 165 titled as ‘Advocate General for
the State’. It runs as follows:-
(1) The Governor of
each State shall appoint a person who is qualified to be appointed a Judge of a
High Court to be Advocate General for the State
(2) It shall be the
duty of the Advocate General to give advice to the Government of the State upon
such legal matters, and to perform such other duties of a legal character, as
may from time to time be referred or assigned to him by the Governor, and to
discharge the functions conferred on him by or under this Constitution or any
other law for the time being in force.
(3) The Advocate
General shall hold office during the pleasure of the Governor, and shall
receive such remuneration as the Governor may determine”.
Paraphrasing the above
provision, one can say, the entire legal work that the AG for a State has to
undertake is completely determined by his employer the Governor, from time to
time, along with the remuneration payable to him for the services to be so
rendered by him. Besides, he is required to discharge only those functions
which the Constitution or any statute might have conferred on him. Of course,
in Article 177 (Rights of Ministers and Advocate General as respects the
Houses) the Constitution bestows upon the AG for a State the right to
participate in any proceedings of the state legislature or any committee
thereof like a Minister, but unlike the Minister without any right to vote.
Here it needs to be underlined that such qualified right of the AG to
participation is limited exclusively to the legislative domain of the State,
not extendable to the judicial forums like courts and tribunals or
quasi-judicial forums like commissions and authorities. However, the
Attorney-General for India, who is apparently the Central counterpart of the
Advocate-General for a State and appointed by the President of India, enjoys
‘the right of audience in all courts in the territory of India’ though unlike
the AG for a State he has no right to participation in legislative proceedings
of the Union.
Coming to the recent ruckus that cropped up over the
role of the Odisha AG Sri A.K. Parija who served as the counsel for a
private-business entity called KIIT, Bhubaneswar in opposition to a state
entity called Odisha Information Commission, some unavoidable but pertinent
questions have popped up in public domain and cry out for an immediate
resolution, such as-
(i) Did the Office of Governor direct Sri Parija to serve
as the counsel for a private business party KIIT for securing a stay order in
its favour from the Orissa High Court in respect of a reasoned-out Order passed
by OIC?
(ii) Did Sri Parija the AG for Odisha seek the approval
from the Governor Odisha to serve as a counsel for the KIIT in opposition to
OIC, in his private capacity as a Senior Advocate instead of his official
capacity as AG for Odisha?
(iii) Since Sri Parija holds the constitutional post of ‘the AG for the State’, that can’t act
against any State entity, what were the compulsions that led him to demean the
Order of a state entity ‘OIC’ before the OHC, only to favour a non-state
private-business entity ‘KIIT’ Bhubaneswar?
(iv) In view of a pronounced
proclivity of Sri AK Parija the incumbent AG of Odisha to promote the cause of
private-business entities at the cost of state entities of Odisha as is evident
from the instant case, is there any mechanism in place at the Office of
Governor to monitor and checkmate the same?
(v) What are the remedial and disciplinary provisions put in place in
the Office of Governor Odisha vis-à-vis the recalcitrant, transgressive and
anti-state acts of omission and commission on the part of Advocate Generals
like the incumbent one Sri AK Parija?
Part-4
Some law-knowing brothers have commented that the AG
insofar as he appeared as a counsel for a private Party (KIIT) in opposition to
a State Party (Odisha Information Commission) in WP (C ) 25922/2021 was
technically correct, though ethically wrong. Before buying this argument, one
needs to ask, where is it mentioned that the AG for a State can argue in favour
of a private Party, that too, against a State Party which is under the veritable
control of the very State for which he has been appointed by the Governor as
the Advocate General under Article 165 of the Constitution? In absence of any detail
statutory provisions or authoritative guideline on this specific question
except the express provisions contained under Articles 165 and 177 of
Constitution, most lawyer friends tend to answer it by referring to this or
that precedent where Mr. X as AG stood for Mr. Y a private party in litigation
against Mr. Z, a State Party, and thereby justify their ‘technically correct’
line of reasoning.
Let’s try to understand the issue with the help of
examples from our day-to-day legal practice. If Mr. A, a Private Company
engages me as his retainer, I can go against another Company or against any Government
entity, if need be, and that is exactly my mandate. But, can I go against the
very Company which has engaged me as a retainer? The answer is an emphatic no. Similarly,
can the AG of a State go against a state entity under the control of his employer-State?
Ordinarily the answer would be no. But, here is a catch! Unlike a Private Company,
which is a single entity unto itself, the State is a massive conglomerate of
countless state entities, such as from Panchayats to Assembly, BDO to Chief
Secretary, RI to Governor, NAC to Municipal Corporation, Primary School to
University, and also a diversity of Companies, Societies, Agencies, Authorities
and Commissions and the like. It may so happen that a dispute arises between the
two state entities, such as a Gram Panchayat and a District Collector. A
pertinent question may arise- on whose side the Advocate General shall take? A
constitutionally valid answer would be- the AG shall play exactly that role as
directed to him by the Governor or for that matter, the State Government.
Next, there may arise a dispute between a private
individual and a Police Station, which is manifestly a state entity. Our
conventional thinking is that the Advocate General shall take the side of Police,
the state entity. But, if the State Government, taking into account peculiar facts
and circumstances of the case, decides to help the complainant individual, who
has been in their opinion, wrongfully brutalized or victimized by the concerned
Police personnel, then they may ask the AG to give protection to the victimized
individual as against the Police which is obviously a state Party.
There may arise also a civil dispute between two rival
private parties, in which the State or for that matter the AG as its chief law
officer, has apparently no role to play due to non-involvement of any stakes of
the Government. But, if the State Government decides to side with a Party for
reasons known to them, they may direct the AG to play a role so as to protect that
Party of their choice as against the other party.
Thus, there is no hard and fast statutory
determination as to which Party the AG shall plead for, though he has been
described as Advocate General for the State and of the State in the Article 165
of Constitution. The role of the AG in each case is absolutely dependent upon
the direction given by the State Government from time to time and on
case-to-case basis. It may sound odious, but as a matter of fact, he has no
choice, no freedom, let alone any discretion whatsoever to exercise as to which
Party to a dispute he shall plead for or oppose.
The Article 165 deals inter alia with the role that
the AG for a State is required to play in respect of all legal matters. The
Clause (2) of the said Article says, “It shall be the duty of the Advocate
General to give advice to the Government of the State upon such legal matters
and to perform such other duties of a legal character, as from time to time, be
referred to or assigned to him by the Governor … .” Thus, the AG can’t even
tender a piece of advice to the State Government on any legal matter unless he
has been asked to, by the Governor. Similarly, the AG can’t suo motu decide as
to which Party he should plead for or oppose in a particular case, unless he
has been asked to, by the Governor. Needless to say, going by the general
scheme of the constitution, Governor has also no discretion of his own in such
matters for he has to act as per the aid and advice of the Council of Ministers
headed by the Chief Minister vide Article 163(1) of Constitution. Thus, it is
for all practical purposes the Chief Minister of the State who is to direct the
AG what to do in the context of a particular litigation, though technically the
communication of any such direction is to be made from the office of Governor.
Besides, the question as to whether the AG for a State, during his incumbency
as such, can plead for any Party by relinquishing his Official designation of
AG and using instead his personal designation i.e. Senior Advocate, is to be
settled in the light of Clause (2) of Article 165 quoted above, that is, if and
whether the AG was directed by the Governor to do so.
In the instant case of WP (C ) 25922/2021 in the
matter of KIIT, BBSR vs Odisha Information Commission and another, which was
disposed of by a single judge bench of Justice Biswanath Rath on 27.08.2021 and
where the incumbent AG Sri Ashok Parija appeared as the Counsel for a private
Party KIIT in his personal capacity of a Senior Advocate, the said Judge before
hearing the matter should have asked Sri Parija a couple of mandatory
questions- (1) Whether you have resigned from your post of AG to appear for a
private party?, and if not (2) Whether you have been directed by the Governor
to appear for a private Party to argue against a State Party? The fact that Justice
Sri Rath didn’t ask Sri Parija these apparently unsavory but strictly
indispensable questions and simply allowed him to go his way is as much ultra
vires his constitutional post as a Judge of the High Court as the questionable role
of the AG Sri Parija was ultra vires the Article 165 of Constitution insofar as
he appeared in the private capacity of a senior advocate during his incumbency
as the AG for Odisha.
Part-5
Vandalization of the High-court Turf by
a Perverse Judge in club with AG Odisha
“Our
concern has been to effectively deal with and rectify instances of deviant
behaviour among members of the superior judiciary to safeguard the fair name of
judiciary, its independence and its image. A few unworthy elements here and
there are sullying the image of the judiciary. It has to be checked. For
judiciary, its image and its reputation is all important; if that is tarnished,
nothing remains. It is equally necessary to create mechanisms which serve to
enhance the image and effectiveness of Superior Judiciary”, so rued a
Consultation Paper on ‘Superior Judiciary’ (vide Para 1.5 https://web.archive.org/web/
20150409012244/http://lawmin.nic.in/ncrwc/finalreport/v2b1-14.htm) which
was prepared by an Advisory Panel comprising Justice Shri H.R. Khanna and Justice
Shri B.P. Jeevan Reddy, as a part of the 2002 Report of the National Commission
to Review the Working of the Constitution chaired by Padma Vibhushan Shri M.N. Rao Venkatachaliah a former
Chief Justice of Supreme Court. ‘A few unworthy elements here and there’ as could
be spotted then by the NCRWC way back in 2002 have in all likelihood mushroomed
into countless replicas during the intervening two decades to the effect of transmogrifying
the bulk of judiciary into a veritable can of worms.
One such contemptible character as typifies ‘the unworthy elements’ stalking
the superior judiciary as of today is a sitting judge of Orissa High Court Sri
Biswanath Rath (vide Profile of Justice B. Rath at https://app.box.com/folder/148794125930),
who together with no less a despicable character namely Sri Ashok Parija the
incumbent AG of Odisha, could recently showcase their braggart that nobody
within or outside the judiciary could ever dent them even if they openly barter
away the constitutional turf of Orissa High Court to a client of their choice
no matter how much dubious, extortionist and law-defying entity it might be,
such as KIIT a private body and its megalomaniac super-boss Sri Achyut Samant, an
edu-businessman turned MP. The unique theatre where such a superbly spicy dirty
picture was played out in full glare of public view was but the sanctimonious zone
of Orissa High Court, and its final scene a two-page diktat from the single
judge-bench of Justice Biswanath Rath to the triumphant jubilation of other two
of the triumvirate, vide High Court Order dated 27.8.2021 at https://app.box.com/file/877352836579).
As could be seen from the Petition of KIIT, it was filed on
26.8.2021 (vide https://app.box.com/folder/149056457085
) and as we have seen, it was decided on the next day only and that too by the
single Judge Sri Rath being the quorum with AG Sri Ashok Parija donning the
disguise of a Senior Advocate to serve his plutocratic client. It is doubtful
if Sri Parija did ever move with such alacrity to get the urgent cases of the Govt
heard so instantaneously, for which he has been appointed by the Governor under
Article 165 of Constitution, as he did in the instant case in favour of an
avowedly private party arrayed against a State entity called Odisha Information
Commission. Further amazing is the queer fact that the Judge Sri Rath in his
Order described Sri Ashok Parija Sr. Advocate as the Counsel for the Petitioner
‘assisted by Advocate Sri S.P. Sarangi’ whereas the Petition was signed by Sri
Sarangi as the only Advocate for the Petitioner KIIT. Moreover, the Judge Sri
Rath’s Order carries no mention as to how the Advocate General Sri Parija
hiding his official designation did appear in the guise of a Sr. Advocate for
the case, with the bona fide Advocate Sri Sarangi relegated to the position of his
Assistant. And further baffling is the quixotic fact that while the Petitioner
prayed for a full-scale Rule Nisi adjudication of their Petition vis-a-vis the
Commission’s Order (vide Prayer at https://app.box.com/folder/149056457085),
the Judge Sri Rath went an extra mile to show fabulous favours by way of granting
an interim stay on the operationaliszation of Commission’s impugned Order. What
else could be the earthly reason behind such a conspicuously outrageous volte
face on the part of the aforesaid 3-Member syndicate than a clandestine, quid
pro quo deal fixed among them to bail out by hook or crook the KIIT and its self-proclaimed
founder-promoter Sri Samant from the impregnable quagmire into which it was thrown
down following the Commission’s Order dated 5.8.2021 (vide Commission’s
Order https://app.box.com/folder/148794125930
)?
Another perplexing question that haunts many a law-literate
observers is as to how and why was Pradip Pradhan (an RTI activist, on whose
application and appeal the Commission undertook a 4-yeras long adjudication) dragged
in as a necessary Opposite Party to the case by the Petitioner-KIIT and
subsequently accepted as such by his collaborators-duo (AG and Judge), though
the Petition’s sole prayer was for quashing of the Commission’s impugned Order?
As is well known, right since 2014 when Sri Pradhan sought for information
about KIIT under the RTI Act, Sri Samant the de facto proprietor of KIIT had
taken him as his sworn bête noire and harboured an incorrigible animosity
against him to no end. It is therefore understandable that Sri Samant in order
to satisfy his vendetta against Sri Pradhan would make him an Opposite Party to
the case. But the question looms large as to why Justice Sri Rath and AG Sri
Parija with whom Sri Pradhan had no truck at all, did entertain the imp-leading
of Sri Pradhan as a necessary Opposite Party along with Commission, there being
absolutely no rhyme or reason? It seems, being induced by their benefactor-client
Sri Samant, both Judge and AG took Sri Pradip Pradhan as their common enemy too
and wreaked their vengeance by allowing his name as the Opposite Party No.2.
As is well known, the Bangalore Principles of
Judicial Conduct (2002) adopted on 27 July 2006 by the UNESCO, to which Indian
judiciary is a party (vide Bangalore Principles https://app.box.com/folder/ 149113727871 ), in
Para- 2.5.2 proscribes the participation of a judge in the proceedings of a
case if the concerned judge previously served as a lawyer or was a material
witness in the matter in controversy. As a matter of fact, Justice Sri Rath not
only served as a lawyer for the OP No.1- Odisha Information Commission (vide
Profile) but also delivered a Judgement in 2014 centring inter alia the controversial
issue of Petitioner- KIIT to be covered under RTI purview or not. (vide Judgement
2014 https://app.box.com/folder/148794125930).
Thus Justice Rath, who served as a lawyer to the OP No.1 in the past and commands
as well a close knowledge of both the disputant parties along with that of the issues
in controversy between them, should have politely recused himself from hearing
the instant case showing the potential ground of a conflict of interest, but
having not done so, he has outrageously violated a celebrated maxim of natural
justice- nemo iudex in sua causa or no one can be judge in his own cause.
Moreover, Justice Rath by dishing out diametrically opposite messages in
Judgement of 2014 (KIIT is covered under RTI Act) juxtaposed to the interim
Stay Order of 2021 (KIIT not to be covered under RTI Act) has engendered an
unprecedented mess for the entire judiciary and as well for RTI users at large
as to which one to follow, the Judgement of 2014 or Interim Stay Order of 2021.
The above mentioned universal principle of judicial
ethics was emphasised for adherence by the judges in the judgement delivered by
former Supreme Court Justice Shri M.N.
Rao Venkatachaliah in the matter of Ranjit Thakur vs Union Of India And
Ors: 1987 AIR 2386 decided on 15.10.1987, where it was inter alia held, “The
proper approach for the Judge is not to look at his own mind and ask himself, however,
honestly, "Am I biased"?, but to look at the mind of the party before
him”. He quoted Lord Denning in corroboration of the point he made, “It (the
court) does not look to see if there was a real likelihood that he (judge)
would, or did, in fact, favour one side at the expense of the other. The court
looks at the impression which would be given to other people. Even if he was
impartial ... if right minded persons would think that in the circumstances
there was a real likelihood of bias on his part, then he (the judge) should not
sit...". (vide Judgement 1987 at https://app.box.com/folder/149113727871).
Echoing the tenor of such deliberation by the distinguished jurists of India
and abroad, the Restatement of Values of Judicial Life, adopted by the Chief
Justices’ Conference of 1999 as a Code of Judicial Ethics has expounded 16
Cardinal Principles for abidance on the part of each Judge, and its first
principle runs as follows: “Justice must
not merely be
done but it
must also be
seen to be
done. The behaviour and conduct
of members of
the higher judiciary
must reaffirm the people’s faith in the impartiality of the
judiciary. Accordingly, any act of a
Judge of
the Supreme Court
or a High Court,
whether in official
or personal capacity, which
erodes the credibility of this perception has to be avoided.” (vide
Restatement of Values at https://app.box.com/file/879109077433).
As most jurists have opined, a single deviant behaviour on the part
of a judge of superior judiciary can go a long way in bringing disrepute to the
courts of law and eroding people’s faith in them. As a part of the Collegium
System the Supreme Court and High Courts of the country have therefore devised
an ‘In-house Procedure’ (vide In-house procedure https://app.box.com/folder/149113727871)
to receive and deal with the complaints arising from deviant behaviour of any
judge belonging to superior judiciary, so as to check corruption, misfeasance,
politicisation and other such malaises eating into its vitals. Needless to say,
it is therefore expected that both Chief Justice of India and Chief Justice of
Orissa High Court, who are not only masters of muster but also the leaders of
collegiums at their respective levels, would take up an appropriate enquiry to
be followed by an equally appropriate remedial action vis-a-vis the deviant behaviour
of Justice Biswanath Rath, who out of some vested interests or the other, could
commit a brazen infraction of India’s Code of Judicial Ethics or
internationally accepted Bangalore Principles, so that the bruised faith of the
common people in the judiciary’s independence, impartiality and propriety can
be restored at the earliest.
Part-6
To throttle
Information Commission & RTI Activism a High Court turns into a Kangaroo
Court
On 27th Aug 2021 the Orissa High Court held
an abrupt session in the style of a Special Court Martial to dispose of a Writ
Petition (civil) together with an Interlocutory Application bearing No.
25922/21 and No. 12024/21 respectively filed just the day before by KIIT
(Kalinga Institute of Industrial Technology), Bhubanswar whose chief
functionary happened to be none else than Sri Achyut Samanta an influential
edu-businessman turned Member of Parliament. Both the applications were indeed
disposed of as hurriedly as these were filed and listed, to the absolute
satisfaction of the said Deponent. All this were possible precisely due to a naked
abdication of constitutional obligation under Article 165 by the AG Sri Asok
Parija who appeared in his private capacity for his private-party client KIIT going
against the Odisha Information Commission a State Party within the meaning of
Article 12 of Constitution. Be that as it might, the ex parte Order passed by
the single Judge Sri Biswanath Rath under Parija effect, declaring an
indefinite stay on the operationalisation of a well-reasoned, exhaustive Order
of Odisha Information Commission dated 5th Aug 2021 took the legal
fraternity by utter surprise, since the said Order threw to the wind well established
canons of Civil Procedure Code 1908 that govern the issue of a stay/injunction
by a Judge of any Court.
Firstly, going by the Proviso to Rule 3 under Order 39
of CPC 1908, the Court while granting an ex parte stay or injunction as prayed
for by a particular party ought to record the reasons in its very Order as to
why such ex parte order i.e. an Order issued without giving an opportunity of
hearing to the Opposite Parties, was deemed urgent and compelling in the
interests of justice. But, as one can see, the ex parte stay order issued by
Justice Biswanath Rath didn’t carry any such mandatory note on the compulsion
or urgency that lay behind his decision to issue the Stay. It is worthwhile to
recollect that the Commission in its Decision dated 5th Aug had
declared vide Para-13 that the KIIT was a public authority as per Section
2(h)(d)(ii) of RTI Act 2005 and therefore obligated to furnish the required information
to the appellant (Sri Pradip Pradhan) within 30 days. It is again worth recalling
that Sri Pradip Pradhan way back in 2014, had sought for such an innocuous
piece of information in Form-A, as the information regarding “appointment of
Ex-State and Central Government employees in KIIT University and its allied
institutions”, denial of which by the Senior PIO of the University triggered
off a 7-years long dispute that culminated in the above said decision of the
Commission. Under the circumstances, Justice Biswanath Rath as required under
Proviso to O.39 R.3 should have noted in his Order as to what disaster would have
befallen the Petitioner-KIIT if the said information would have been shared by
them with Sri Pradhan in compliance to the Commission’s Order. The ex-Parte
Order of Justice Rath is therefore not only vitiated by non-compliance to the
said Proviso of CPC, but also tainted by a palpable favoritism and partiality
shown to the Petitioner- KIIT on one hand and a trenchant animosity and
ill-will towards the Opposite Parties- Odisha Information Commission and RTI activist
Sri Pradip Pradhan, on the other.
Secondly, in a situation where the Court grants
interim stay or injunction as prayed for by the applicant, without issuing a notice
of the application to the Opposite Parties, the Clause (a) under Proviso to
Rule 3 of Order 39 enjoins upon the Court “to require the applicant to deliver
to the Opposite Party or send to him by registered post” immediately a copy of
the application for injunction together with connected documents, while Clause
(b) further requires the applicant to file on the same day or on the day
following an affidavit showing the delivery or dispatch of the said copies
to the Opposite Parties. In the instant
case, the applicant for stay i.e. KIIT was supposed to make such delivery while
the requiring authority i.e. the Judge Biswanath Rath was to ensure the compliance
thereto. But, in view of the hard truth that the OP-2 Sri Pradip Pradhan has as
yet not received any dispatch whatsoever in this regard despite a long lapse of
more than two and half months, it seems both KIIT and Judge, in collusion with the
super-strategist the AG Sri Parija have worked in tandem, by way of a well-designed
criminal conspiracy to sabotage the very dispatch of the notice so that the
said dispatch is never delivered to OP -2 and the latter stays eternally disabled
to file his counter-affidavit vis-à-vis the impugned Stay Order. Thus, a stay
order on the operationalisation of Odisha Information Commission’s Decision,
which was an interim/temporary one, could be rendered into an absolute and
permanent one, thanks to such subterfuges, to the fabulous benefit of the
Petitioner-KIIT.
Thirdly, going by Rule 3-A under Order 39 of CPC 1908,
it is the responsibility of the concerned Court (in the instant case, Justice
Biswanath Rath) ‘to make an endeavor to finally dispose of the application’ for
stay within 30 days from the date of its issue, failing which said Court “shall
record the reasons for such inability”. Viewed in juxtaposition to such a grandiloquent
provision of CPC, the endeavor of the Court or for that purpose that of the
Judge Sri Biswanath Rath, made if any, is still shrouded with an impenetrable mystery.
Because, even after a long lapse of two and half months since the issue of the
stay on Commission’s Order, Sri Pradip Pradhan a necessary Party to the case as
the OP No. 2 qua the RTI applicant/ appellant has reportedly not received as
yet a copy of the notice along with that of the Plaint and IA etc. from the
Court. Given such a dismal failure, nay, a deliberate infraction on the part of
the Orissa High Court or for that matter its Judge Sri Biswanath Rath to undertake
a bare minimum of their endeavor, that is, delivery of the Notice to a
necessary Party, the question arises whether and if the Court wanted and meant at
all to dispose of the application for Stay within 30 days as warranted under
Order 39 Rule-3A of CPC 1908.
Lastly, the question arises, if hypothetically the
entire judicial and administrative machinery of a Court fails the above
mentioned provisions of CPC 1908 for disposal/vacation of a stay order, what
remedy does exist thereto? As a matter of fact, a Division Bench of Supreme
Court comprising Justice K.T. Thomas and Justice R.P. Sethi
delivered a Judgement on 19 September, 2000 in the matter of A. VENKATASUBBIAH
NAIDU versus S. CHELLAPPAN AND ORS, where the above said hypothetical problematique
was sought to be addressed at length. This Judgement said inter alia, “What
would be the position if a court which passed the order granting interim ex
parte injunction did not record reasons thereof or did not require the
applicant to perform the duties enumerated in Clauses (a) & (b) of Rule 3
of Order 39. ….. But if a party, in whose favour an order was passed ex parte,
fails to comply with the duties which he has to perform as required by the
proviso quoted above, he must take the risk. Non-compliance with such
requisites on his part cannot be allowed to go without any consequence and to
enable him to have only the advantage of it. The consequence of the party (who
secured the order) for not complying with the duties he is required to perform
is that he cannot be allowed to take advantage of such order if the order is
not obeyed by the other party. A disobedient beneficiary of an order cannot be
heard to complain against any disobedience alleged against another party. ……
Nonetheless, we have to consider the consequence, if any, on account of the
Court failing to pass the final orders within thirty days as enjoined by
Rule3-A….
“What would happen if a Court does not do either of
the courses? We have to bear in mind that in such a case the Court would have
by-passed the three protective humps which the legislature has provided for the
safety of the person against whom the order was passed without affording him an
opportunity to have a say in the matter. First is that the Court is obliged to
give him notice before passing the order. It is only by way of a very
exceptional contingency that the Court is empowered to by-pass the said
protective measure. Second is the statutory obligation cast on the Court to
pass final orders on the application within the period of thirty days. Here
also it is only in very exceptional cases that the Court can by-pass such a
rule in which cases the legislature mandates on the court to have adequate
reasons for such bypassing and to record those reasons in writing. If that hump
is also bypassed by the Court it is difficult to hold that the party affected
by the order should necessarily be the sole sufferer. It is the acknowledged
position of law that no party can be forced to suffer for the inaction of the
court or its omissions to act according to the procedure established by law. Under
the normal circumstances the aggrieved party can prefer an appeal only against
an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms
of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional
court during the pendency of the application for grant or vacation of temporary
injunction. In such circumstances the party who does not get justice due to the
inaction of the court in following the mandate of law must have a remedy. So we
are of the view that in a case where the mandate of Order 39 Rule 3A of the
Code is flouted, the aggrieved party shall be entitled to the right of appeal
notwithstanding the pendency of the application for grant or vacation of a
temporary injunction, against the order remaining in force. …. In appropriate
cases the appellate court, apart from granting or vacating or modifying the
order of such injunction, may suggest suitable action against the erring
judicial officer, including recommendation to take steps for making adverse
entry in his ACRs”.
The
above said diagnosis and dicta by the apex court, though delivered in the
context of the abject failure of a subordinate court in complying with the
mandates of CPC in the matter of ex parte orders, are absolutely relevant in the
instant case of High Court where an Opposite Party (OP-2 Sri Pradip Pradhan)
without having been heard at all, has been, with no rhyme or reason, made to
suffer the denial of his statutory RTI from a deemed Public Authority (KIIT
University- Petitioner) thanks to a mindless, arbitrary and mala fide interim
stay order on the decision of OIC (OP -1), of late pronounced by a single bench
Judge Sri Biswanath Rath at the instigation of an woolly Advocate General alias
Sri Ashok Parija. A triumvirate of constitutional functionaries- a Judge, an AG
and KIIT Chief turned MP- are thus out to throttle Sri Pradhan Pradhan a
popular icon of Odisha’s RTI activism and as well Odisha Information Commission
the final appellate authority heading the state’s RTI regime. The moot question
arises, can the Collegiums at the level of Supreme Court and Odisha High Court do
their bit to enquire into and remedy the damage already done to the mandates of
CPC 1908 by the trio of above said constitutional functionaries in their mala
fide bid to efface Information Commission and RTI activism from the state of
Odisha?
Chitta Ranjan Behera, Advocate Orissa High Court (BCE
No. O- 419/1995), Dt 01.10.2021, Mobile No. 9437577546