AT Z.P.
State of Z ………………….... Appellant
Versus
Mr. X …………………….. Respondent
[SPECIAL APPEAL No. OF 2009]
Team Code : IM- 25
TABLE OF CONTENT
CONTENT Page No.
1.INDEX OF AUTHORITIES
a. List of abbreviations 3
b. List of Statutes 4
c. Books and Commentaries 4
d. Electronic Medium 4
e. Table of Cases 5
2. STATEMENT OF JURISDICTION 6
3. STATEMENT OF FACTS 7
4. LIST OF DATES 8
5. STATEMENT OF ISSUES 9
6. SUMMARY OF ARGUMENTS 10
7. ARGUMENTS IN ADVANCE 11
8. PRAYER 21
INDEX OF AUTHORITIES
LIST OF ABBREVIATIONS
AIR All India Reporter
Art. Article
Co. Company
DIG Deputy inspector- General
Govt. Government
i.e., Id est (that means)
Ltd. Limited
No. Number
Pg Page
Para. Paragraph
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec. Section
SSP Senior Superintendent of
Police
u/A Under Article
u/s under section
v. Versus (against)
List Of Statutes
The Allahabad High Court Rules,1952
The Constitution of India
U.P. Police Officers of the Sub ordinate Ranks (Punishment and Appeal ) Rules, 1991
Books And Commentaries
Indian Constitutional Law, 5th Ed. - Prof. M.P. Jain Wadhwa And Co., Nagpur
Constitutional Law of India, 44th Ed- Dr. J.N. Pandey Central Law Agency
The Constitution of India, 10th Ed. - Dr. V.N. Shukla Eastern Book Company
The Allahabad High Court Rules, 1952- Sandeep Mukherjee Hind Publishing House
U.P. Police Regulations, 6th Ed. - Ali Kabir Hind Publishing House
Internet Sources
www.manupatra.com Accessed on 5th September, 2009
www.courtnic.nic.in Accessed on 5th September, 2009
www.judis.com Accessed on 5th September, 2009
www.legalserviceindia.com Accessed on 6th September, 2009
LIST OF CASES
1. American Cyanamid Co. v. Ethicon Ltd. 17
2. Amity Business School v. All India Council For Technical Education and others 14
3. APDDC Staff & Workers Union v. Govt. of AP. 20
4. Ashok Kumar Bajpai v. Dr. (Smt.) Ranjana Bajpai 15
5. Asst. Collector of Central Excise , W.B. v. Dunlop India Ltd. 12
6. Committee of Management v. Manju Keshi Dixit. 15
7. Hind Lamps Ltd. V. Deputy Labour Commissioner, Agra & Anr. 19
8. M/s. Gujarat Bottling Co. v. The Coca Cola Company. 18
9. Morgan Stanley Mutaual Fund v. Karick Das 20
10. Prof. Y.C. Simhadri, Vice Chancellor, Banaras Hindu University and Ors. v. Deen Bandhu Pathak 19
11. Ramayan Rao & Ors. v. Rama Shanker Prasad & Ors. 16
12. State of Uttar Pradesh & Ors. v. Committee of Management 16
13. State of Uttar Pradesh v. Kumari Renu Tiwari & Ors. 16,19
14. State of Uttar Pradesh v. Labh Chand 13
15. State of U.P. v. Mohd. Nooh 12
16. State of U.P. v. Param Hansh Singh 16
17. State of U.P. & Ors. v. Rama Shanker Prasad & Others 16
18. State of U.P. v. Smt. Dayawanti Khanna 16
19. State of U.P.v. Smt. Meera Sankhwar & Ors. 15
20. State of West Bengal v. North Adjai Coal Co. 12
21. Thansingh v. Supdt, of Taxes. 12,13
22. U.P. Jnr. Doctors Action Committee v. Dr. B. Sheetal Nandwani 16
23. Union of India v. Era Educational Trust. 20
24. Union of India v. T.R. Verma 11
STATEMENT OF JURISDICTION
The Applicant has approached to the Hon’ble High Court under the Rule8 of Chapter V of The Z.P. High Court Rules, 19521 with an intention for the Special Appeal against the decision of the Single Judge to stay the termination order dated 26.06.2009.
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1. Special Appeal
STATEMENT OF FACTS
1. Respondent was working as a constable under Appellants since 1990 posted in the city of Hampur.
2. He was working under Appellant since 19 years and we used to get some minor complaints about his nature but they can be easily avoided.
3. On 05.06.2009, while X was transporting an undertrial prisoner P from police station to the Court of Magistrate for appearance in a criminal matter, the accused P ran away from the custody of X.
4. After conducting a preliminary enquiry, the SSP of city of Hampur, appellant terminated X from services by way of an order dated 06.6.2009.
5. Aggrieved buy the termination order, X filed a writ petition before Hon’ble High Court of Z.P. and writ petition was up for consideration on 26.06.2009.
6. Hon’ble Single Judge was pleased to stay the termination order dated 06.06.2009 without following the principles of natural justice.
7. Therefore, appellant went up in Special Appeal against the order dated 26.06.2009 before the Hon’ble High Court.
LIST OF DATES
1990 X was appointed as a constable under Z.P. Police and was posted in the city of Hampur.
05.06.2009 Undertrial prisoner P ran away from the custody of X when he was transporting him from police station to the Court of Magistrate.
06.06.2009 After conducting a preliminary enquiry, the SSP, Appellant terminated X from services.
26.06.2009 Aggrieved by the termination order , X filed a writ petition before Hon’ble High Court of Z.P. and writ petition was taken up to consideration.
26.06.2009 Hon’ble single Judge was pleased to stay the termination order dated 06.06.2009
STATEMENT OF ISSUES
1. Whether writ petition filed by X was not maintainable for want of alternative remedy?
2. Whether Special Appeal is maintainable against the order dated 26.06.2009 passed by the Hon’ble Single Judge?
3. Whether order dated 26.06.2009 was liable to be set aside as the same amounted to giving of final relief at the interim stage?
SUMMARY OF ARGUMENTS
1. That the writ petition filed by X was not maintainable for want of alternative remedy.
The writ petition filed by X was not at all maintainable and the Hon’ble Single Judge of the High Court without noticing the procedure of natural justice has given the decision. Under the Section 20 of The U.P. Police Officers of the Sub-Ordinate Ranks (Punishment and Appeal) Rules,1991 which indicates the departmental appeal for the Police Officer against whom an order of punishment has been passed.
Thus, X did not exhausted his alternate remedy and also before filing the writ in the High Court and this is contrary to the principle of natural justice hence, writ petition is not at all maintainable.
2. That the Special Appeal is maintainable against the order dated 26.06.2009 passed by the Hon’ble Single Judge.
As per the Chapter VIII , Rule 5 of the Z.P. High Court Rules, 1952 which clearly provides for Special Appeal.
3. That the order dated 26.06.2009 was liable to be set aside as the same amounted to giving a relief at the interim stage.
Of course, the order dated 26.06.2009 was liable to be set aside because the Hon’ble Single Judge was pleased to stay the termination order dated 06.06.2009 and thus it amounts to giving a relief at the interim stage to X who has been suspended after proper investigation and under the same punishment to be granted as provided in the Act.
ARGUMENTS IN ADVANCE
1. Whether writ petition filed by X was not maintainable for want of alternative remedy?
The writ petition filed by X was not maintainable for want of alternative remedy because under the U.P. Police Officers of the Sub ordinate Ranks (Punishment and Appeal ) Rules, 1991 provided in U.P. Police Regulations , it is clearly indicated under-
20. Appeals- (1) Every Police Officer against whom an order of punishment mentioned in sub- clauses (i) to (iii) or clause (a) and sub clauses (i) to (iv) or clause (b) is entitled prefer an appeal against the order of such punishment to the authority mentioned below:-
1. To The Deputy inspector- General , if the original order is of the Superintendent or police or officers empowered under sub-rule (4) of rule 7 of these rules.
Thus, X needs to first file an appeal to the DIG before going to High court for filing writ petition u/A 226 of the Constitution. The rule of High Court is also that one needs to exhaust all his remedy before filing writ to the High Court, which he fails to do so.
The principle has been stated by the Supreme Court as follows2:-
“It is well settled that when an alternative and equally and efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence
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2. Union of india v. T.R. Verma , AIR 1957 SC 882: 1958 SCR 499.
of another remedy does not affect the jurisdiction of the Court to issue a writ; but the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs….”
Art. 226 is not meant to short- circuit or circumvent statutory procedures3. In State of West Bengal v. North Adjai Coal Co.4., the Supreme Court has held that normally before a writ petition under Article 226 is entertained, the High Court would insist that the party aggrieved by the order of a quasi- judicial tribunal should have recourse to the statutory authorities which have power to give relief.
Also, the Supreme Court held, 5“Ordinarily the court will not entertain a petition under Art. 226 , where the petitioner has an alternative remedy, which without being unduly onerous, provides an effective efficacious remedy.”
The Supreme Court has characterised the rule of 6“ exhaustion of the remedies” as “a rule of policy, convenience and discretion rather than a rule of law”.
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3. Asst. Collector of Central Excise , W.B. v. Dunlop India Ltd.AIR 1985 SC 330: (1985) 1 SCC 260; APDDC Staff & Workers Union v. Govt. of AP, AIR 2000 AP 70.
4. (1971) 1 SCC 309,310 : (1971) 27 SCC 268.
5. Thansingh v. Supdt. Of Taxes, AIR 1964 SC 1419: (1964) 6 SCR 654.
6. State of Uttar Pradesh v. Mohd. Nooh , AIR 1958 SC 86: 1958 SCR 595
In the above case, the Supreme Court has observed:-
“ If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court’s sense of fairplay the superior court may, we think, quite properly exercise its power to issue the of prerogative writ of certiorari to correct the error of the court or tribunal of first instance even if an appeal to another inferior court or tribunal was available….”
The writ filed to the High Court u/A 226 is also the infringement of natural justice.
In State of Uttar Pradesh v. Labh Chand7, the Govt. passed an order compulsorily retiring the writ petitioner. He filed a writ petition to challenge the order, but the writ petition was dismissed by the High Court on the ground that there was an alternative remedy before the U.P. Service Tribunal which was highest forum created by law to give full, complete and expeditious relief to public servants in service matters, The petitioner could not invoke the extraordinary jurisdiction u/A 226 for redressal of his grievances, by-passing the special forum created specially by law for redressal of such grievances efficaciously and adequately.
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7. AIR 1994 SC 754,759 : (1993) 2 SCC 495.
Also, Thansingh, supra, note 5
2. Whether Special Appeal is maintainable against the order dated 26.06.2009 passed by the Hon’ble Single Judge?
The Special Appeal is Maintainable against the order dated 26.06.2009 passed by the Hon’ble Single Judge provided under rule 5 of Chapter VIII of The Z.P. High Court Rules, 1952 which states that:-
Special Appeal- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of Superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award(b) of the Govt. or any Officer or authority, made or purported to be made in the exercise of appellate or revisional jurisdiction under any such Act of one Judge.
This can be illustrated by:-
Thus, here also X who was under the service of the State went to Single Judge against its termination order and filed a writ u/A 226 in the High Court which has already been discussed in the first contention that he didn’t used his alternate remedy and so State went to Special appeal against the decision.
In the case of State Of U.P. And Ors. vs. Smt. Meera Sankhwar And Ors.8 where special appeal has been filed against the impugned interim order of a learned Single Judge dated 1.7.2004. By that order the learned Single Judge has stayed the order of the State Government dated 7.7.2004 by which the writ petitioner (who was the Adhyaksha of Zila Panchayat, Kanpur Nagar) was deprived of her financial and administrative powers pending the enquiry into the charges
against her under the Proviso to Section 29(1) of the U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961, the appeal was allowed.
In this connection we may mentioned that Chapter VIII, Rule 5 of the Allahabad High Court Rules states that an appeal shall lie to the Court from a judgment. As to when an interim order will be a judgment and when it will not, has been discussed in detail by a Division Bench of this Court in Ashok Kumar Bajpai v. Dr. (Smt.) Ranjana Bajpai.9
In Committee of Mgt. v. Manju Keshi Dixit, 10 a Division
Bench of this Court held that a special appeal against an interim order of a
learned Single Judge in a writ petition was maintainable where it virtually gave
the final relief prayed for. That interim order stated:
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8. (2004) 2 SAC 684
9. 2004 (1) AWC 88 : (2003) 2 SAC 633 (DB).
10. (1999(4) AWC 3167)
"Until further orders we direct that the petitioner shall get salary of
L.T. Grade teacher and no recovery shall be made in respect of L.T. Grade which
he had already received."
The Division Bench was of the view that the special appeal was
maintainable against that impugned interim order because the said order amounted to a judgment as it gave the final relief prayed for. Same was also held in- U.P. Jr. Doctor's Action Committee v. Dr. B.Sheetal Nandwani11 (ii) State of U.P. and Ors. v. Committee of Management,12; (iii) State ofU.P. and Anr. v. Smt. Dayawanti Khanna,13; (iv) Ramayan Rao and Ors.v. Rama Shanker Prasad and Ors., 14 and (v) State of U.P. and Ors.v. Km. Renu Tiwari and Ors., 15 Similarly in State of U.P. and Ors. v. Param Hansh Singh,16
, a similar view has been reiterated. It was held therein that if an interim
order amounts to final relief claimed in the writ petition, the special appeal
is maintainable. The Court held as under :
"In our opinion, the contention raised has no substance. The provisions of
' Chapter VIII, Rule 5 of the Rules do not prohibit filing of a special appeal
against an interim order. If the interim order is of such as nature which grants
principal relief claimed in the writ petition, the special appeal against such
an order cannot be held to be barred."
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11. JT 1992 (1) SC 571
12. 1994 (3) High Court Views Daily (Allahabad) 153
13. 1994 ALR 140
14. 1993 (2) ACJ 938
15. 1993 (2) ACJ 938
16. 2001 (3) AWC 2160
3. Whether order dated 26.06.2009 was liable to be set aside as the same amounted to giving of final relief at the interim stage?
The Single Hon’ble Judge while deciding to stay the order on the termination of X, it is itself implied that the Court interferes in his dismissal which is itself giving of final relief at the interim stage. Thus, he can join again his duty but that could have opposite effect on the State police as the escape of such undertrialled prisoner is not a negligible act on his behalf that can be avoided. Again such act could withdraw the confidence of the citizen of State on our Department.
As far as interim relief at interim stage is concerned, then the principle was laid down in the famous case of AMERICAN CYANAMID CO v ETHICON LTD17, it was laid down that-
Your browser may not support display of this image. “when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff’s legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when…the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction; but since the middle of the 19th century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the plaintiff had not been entitled to restrain the defendant from doing what he was threatening to do.”
17. (1975) 1 ALL ER 504.
In another important case of M/s. Gujarat Bottling Co. v. The Coca cola Co.& Ors.18-
On January 30, 1995 Coca Cola filed a suit (Suit No. 400 of 1995) in the
Bombay High Court seeking various reliefs. In the said suit Coca Cola took out
Notice of Motion No. 316 of 1995 seeking interim relief. During the course of
hearing on the said Notice of Motion before the learned single Judge of the High
Court (Dhanuka J.) the learned counsel for Coca Cola sought interim relief in
terms of prayers (a)(i), (a) (ii), (a)(iii) and (a)(viii) of the Notice of
Motion. By his order dated February 22, 1995 the learned single Judge declined
the application for grant of interim relief in terms of prayers (a)(i), (a)(iii)
and (a)(viii) but issued an interim injunction restraining GBC from
manufacturing, bottling or selling or dealing with the products, beverages of
any brand or trade mark owned by respondents Nos. 5 and 6 or anyone else other
than Coca Cola. GBC was permitted to pursue its application dated January 31,
1995 pending before the Director (F&VP), Ministry of Food Processing Industries, in accordance with law but GBC was directed not to act upon the permission of the said authority or any other authority, if granted, without obtaining prior leave of the court. Two appeals (Appeals Nos. 183 and 191 of 1995) were filed against the said order of the learned single Judge before the Division Bench of the High Court - one was by Gujarat Bottling Company and the other was by Coca Cola. During the course of hearing of the said appeals the parties, through their counsel, submitted that as decision in the appeals would have impact on the Motion pending before the learned single Judge, it was desirable that Notice of Motion No. 316 of 1995 should be taken up on board and
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18. (1995) 5 SCC 545.
disposed of finally by the Division Bench so as to avoid one more appeal. In view of the said submission and by consent of the parties the Motion was heard and disposed of finally by the Division Bench by the impugned judgment dated March 31, 1995. By the said judgment Notice of Motion No. 316 of 1995 was made absolute in terms of prayer Nos. (a)(ii) and (a)(iii) as modified. Prayer (a)(ii) was for an injunction restraining respondent No. 1 (GBC) either directly or indirectly by itself or through its shareholders from concerning itself with the products, beverages of any other brand or trade mark of the plaintiffs (Coca Cola).
Feeling aggrieved by the said judgment of the Division Bench of the High
Court dated March 31, 1995, GBC (defendant No.1) and the four transferees of the shares of GBC (defendants Nos.7 to 10) have filed these appeals. By the said
interim order the High Court has given effect to the negative stipulation
contained in paragraph 14 of the 1993 Agreement
A similar view has been reiterated in Hind Lamps Ltd. v. Deputy Labour
Commissioner, Agra and Anr. 19 and State of U.P. v. Kumari Renu Tiwari and Ors,20; Prof. Y.C. Simhadri, Vice Chancellor, Banaras Hindu University and Ors. v. Deen Bandhu Pathak, 21. In all these cases it was held that an interlocutory order which decides the matter in dispute or affects vital and valuable rights of the parties and which works serious injustice to the parties concerned, is a judgment and is as such appealable.
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19. 2002 (3) AWC 1908
20. (1993) 2 UPLBEC 1325
21. 2001 (4) AWC 2688 (2001) 3 UPLBEC 2373
* The Supreme Court has cautioned the High Courts that ex parte injunctions should be granted only under “ exceptional circumstances”. 22
But, u/s 8(3) of The U.P. Police Officers of the Sub Ordinate Ranks (Punishment and Appeal ) Rules,1991 dealing with Dismissal and Removal which provides that all orders of dismissal and removal of Constables shall be passed by Superintendent of Police.
Thus, its dismissal was done according to the prescribed procedure.
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22. Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225; Union of India v. Era Educational Trust, AIR 2000 SC 1573 : (2000) 5 SCC 57.
PRAYER
Wherefore, in light of issues raised, arguments advanced and authorities cited, it is humbly prayed before the Hon’ble Court that it may be graciously pleased to:
1. That the termination of the constable as was given by the Appellant shall remain in force.
2. That the stay order dated 26.06.2009 given by a Single Hon’ble Judge shall be set aside.
3. Pass any order/orders or other remedy which the court may deem fit to grant to the applicant.
And for this act of kindness of your Lordship, the Petitioner shall as duty bound ever pray.
Respectfully Submitted on behalf of the Applicant
Sd-
Counsel for the Applicant
Moot Court Related Posts:
Moot Court
http://dhbhsh.blogspot.com/2011/06/moot-court.html
An Introduction of Moot Court:
http://dhbhsh.blogspot.com/2011/07/introduction-of-moot-court.html
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