Wednesday, December 23, 2020

Supreme Court vindicates reputation of 3 judges dismissed by State of Bihar

The General Administration Department of Government of Bihar on December 21, 2020 issued a four page long notification dated December 17, 2020 regarding dismissal of three judges of the lower court -- Hari Niwas Gupta, Komal Ram and Jitendra Nath Singh -who were allegedly caught by Nepal Police with women in Metro Hotel in Nepal in 2013. The order was issued pursuant to the letter of Registrar General, Patna High Court dated September 3, 2020 in the light of Supreme Court's verdict dated November 8, 2019 in Hari Niwas Gupta v State of Bihar [Civil Appeal No. 3501 of 2017]. The fact which emerges from the verdict is that there is nothing on record to show that Nepal Police ever corroborated the allegation in question. These three judicial officers were working as Principal Judge, Family Court, Samastipur; Chief Judicial Magistrate, Araria; and ad-hoc Additional District and Sessions Judge, Araria, respectively. It is apparent from the verdict of Supreme Court's 2-Judge Bench that all the three judicial officers have retired during the pendency of the case. The order dated November 8, 2019 categorically states that "We also clarify that we have expressed no opinion on the merits of the allegations made against the three judicial officers. There would be no order as to costs." There is nothing on record to corroborate the veracity of the news item was published in a local Nepali daily (Udghosh) on 29th January 2013 that on 26th January 2013 the Nepal Police had apprehended three judicial officers belonging to the State of Bihar as they were allegedly found in a compromising position with three Nepali women in a guest house at Biratnagar, Nepal. The Supreme Court's verdict dated November 8, 2019 records that another news item published by the same daily on 22nd February 2013, "expressed regret over erroneous reportage."

Subsequent to these allegations Patna High Court had addressed a letter to the Ministry of Home Affairs, Government of India to collect and ascertain information, details and records. By communication dated 20th June 2013, the Deputy Secretary, Ministry of Home Affairs, Government of India, had informed the High Court that the mobile phones of the judicial officers were simultaneously switched off for a long time on 26th and 27th January 2013 and when the phones were active during that period, they were within the range of the tower at Forbesganj town, which indicated that the judicial officers were together in proximity to Nepal, and not at the place of their posting. The Supreme Court's verdict  also records that "the Superintendent of Police, Araria appeared to have held a bias against the judicial officers." 

There is nothing in the Court's verdict to show that finding of the Deputy Secretary in question was placed on record for examination by the Court. Supreme Court's 23 page long order does not authenticate the claim made by a Deputy Secretary of Ministry of Home Affairs about the whereabouts of the judicial officers.

It is recorded that the Standing Committee of the High Court in its meeting held on 5th February, 2014 had resolved that the judicial officers should be placed under suspension and also that they should be dismissed from service without an inquiry in exercise of power under clause (b) of the second proviso to Article 311(2) of the Constitution of India, read-with Rules 14 and 20 of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005. At the Full Court of the judges of the High Court held on 10th February, 2014, the recommendation of the Standing Committee was accepted and Full Court resolution was passed for dismissal of the judicial officers from judicial service in the State  Government of Bihar, dispensing with the disciplinary proceedings by invoking clause (b) of the second proviso to Article 311(2) of the Constitution of India. The recommendation of the Full Court was accepted by the State Government and vide common order dated 12th February 2014 issued by the Governor of the State of Bihar the judicial officers were dismissed from service.

The judicial officers had challenged the dismissal order by filing separate writ petitions, which were allowed by the Division Bench of the High Court (‘Division Bench’ for short), vide judgment dated 19th May 2015, primarily on the ground that the Full Court had contravened clause (b) of the second proviso to Article 311(2) of the Constitution by not recording reasons for dispensing with the disciplinary inquiry at the time of recommending dismissal of the judicial officers. The note relied upon by the Registry of the High Court as purportedly recording the reasons for dispensing with the inquiry, it was observed, did not contain any date or signatures and lacked authenticity. Thus, the High Court had not been able to place on record any material to show that any reasons were recorded for dispensing with the disciplinary proceedings.

While setting aside the order of dismissal, in the case of the judicial officers, dated 12th February 2014 for failure to record reasons for dispensing with the inquiry, the Division Bench had given the following liberty and discretion to the High Court: “The writ petitions are, accordingly, allowed, and the common order dated 12.02.2014 is set aside. It is made clear that in case, the High Court intends to invoke its power under Sub-clause (b) of the 2nd proviso to Article 311 (2) of the Constitution of India, it shall be under obligation to record reasons, at the appropriate stage and follow the prescribed procedure. It is brought to our notice that two (sic- one) of the officers have attained the age of superannuation, during the pendency of the writ petitions. We direct that as a result of the judgment in these writ petitions, the petitioner, who is already in service, shall be deemed to be under suspension, and the other two would be deemed to be continuing in service for the limited purpose of enabling the departmental proceedings to continue. The High Court shall take a decision in this behalf, within a period of two months from today. If no decision is taken in this regard, the proceedings would lapse and the petitioners would be entitled for all the consequential benefits, as though the proceedings have been set aside in their entirety. If, on the other hand, the proceedings are initiated, the petitioners shall await the outcome thereof. While the one who is in service shall be paid subsistence allowance, the other two shall be paid provisional pension to the extent of 25%, forthwith..."

The judicial officers have challenged this afore-quoted portion and the liberty granted to the High Court to invoke the power under clause (b) of the second proviso to Article 311(2) of the Constitution at an appropriate stage with the requirement to record reasons and follow the prescribed procedure, on the ground that the liberty granted permits the High Court to record reasons post the earlier order of dismissal dated 12th February 2014, which is contrary to law and the Constitution.  

Striking down and setting aside the earlier order dated 12th February, 2014 under clause (b) of the second proviso to Article 311(2) for failure to record reasons for dispensing with the departmental inquiry annuls the earlier order, which ceases to exist and stands obliterated, but does not adjudicate on the merits of the allegations so as to attract the bar of res judicata.

In its dismissal order, Supreme Court observes "Conscious of the seriousness of the allegations and the reason for allowing the writ petition, the Division Bench (of High Court) was justified in not barring the High Court from fresh application of mind and from invoking clause (b) of the second proviso to Article 311(2) if required and justified in accordance with law. The expression ‘at appropriate stage’ used by the Division Bench is not a direction for initiation of a regular departmental inquiry nor does it prohibit recourse to clause (b) to the second proviso of Article 311(2) of the Constitution in accordance with law. We do not see such fetters and restrictions placed on the High Court by the Division Bench."

The Court has recorded the argument of the counsel appearing for Komal Ram and Jitendra Nath Singh  who raised a "contention relating to the power of the High Court to dispense with the inquiry under clause (b) of the second proviso to Article 311 of the Constitution. The contention is that this power exclusively vests with the Governor alone who has to satisfy himself and record in writing the reasons why it is not reasonably practical to hold an inquiry. Reliance was placed on the following observations in the Constitutional Bench judgment of this Court in State of West Bengal v. Nripendra Nath Bagchi," It reads:“...within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal, subject however to the conditions of service, to a right of appeal if granted by the conditions of service, and to the giving of an opportunity of showing cause as required by clause (2) of Article 311 unless such opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause.” 

Responding to this contention, the Court observed that "it is not to be expected that the High Court would run to the Government or the Governor in every case of indiscipline however small and which may not even require the punishment of dismissal or removal. These Articles go to show that by vesting “control” in the High Court the independence of the subordinate judiciary was in view. This was partly achieved in the Government of India Act, 1935 but it was given effect to fully by the drafters of the present Constitution. This construction is also in accord with the Directive Principles in Article 50 of the Constitution which reads: '50. The State shall take steps to separate the judiciary from the executive in the public services of the State'."

Significantly, the Supreme Court has recorded that "During the course of hearing before us, it was pointed out that the Full Court had subsequently again recommended dismissal of the judicial officers dispensing with the departmental inquiry in the exercise of power under clause (b) of the second proviso to Article 311(2) of the Constitution vide recommendation dated 13th August 2015 However, the matter is pending with the State Government..." 

Patna High Court had constituted a 5-member panel in this regard on May 22, 2015. Following the report of this panel dated August 3, 2015. a full court of Patna High Court sat and took a reasoned decision on August 7, 2015 which was communicated to the the Registrar General of the Patna High Court on August 13, 2015. It seems two concurrent proceedings were underway in this case. 

Hari Niwas Gupta, one of the three dismissed judges filed an appeal against the decision of the full court of the Patna High Court in the Supreme Court on September 1, 2015 which was registered as Civil Appeal. No. 3105 of 2017 on February 20, 2017. Besides this S.L.P.(C) CC No. 16385 of 2015 was registered on September 2, 2015 and SLP(C) No. 26473 of 2015 was registered on September 11, 2015 too was clubbed together. Subsequently, two other dismissed judges also filed their appeals. The fact remains that the case of Hari Niwas Gupta got admitted in the Supreme Court on January 19, 2016. 

On the very first day of hearing, on September 11, 2015, a 3-judge Bench of Chief Justice and Justices C. Nagappan and Amitava Roy had issued an order saying, "In the meantime, the operation of the impugned judgment and order shall remain stayed." 

The order of 2-judge Bench of Justices Mohan M. Shantanagoudar and Sanjiv Khanna dated  November 8, 2019 dismissing the civil appeal of Hari Niwas Gupta along with the civil appeal Nos. 3106-3017 of Komal Ram and Jitendra Nath Singh records that "we were informed that no final order has been passed in view of the stay order dated 11th September 2015 passed by this Court." 

Pursuant to the Court's order, according to the notification of the Department of General Administration dated December 17, 2020, Government of Bihar, the dismissal of these judicial officers will be effective from February 12, 2014. 

The concluding paragraph of the Supreme Court's verdict dated  November 8, 2019 states that "the appeals are dismissed and the stay order is vacated" but it does not record the fact that High Court's order was stayed by a Chief Justice headed 3-Judge Bench. Can a 2-Judge Bench vacate the stay order of 3-Judge Bench?

The fact remains the penultimate paragraph of the verdict observes: "It was also initially urged and argued that the order of dismissal under clause (b) of the second proviso to Article 311(2) of the Constitution cannot be passed against the officer who has retired. We were informed that the other two officers had also retired during the pendency of the present appeals. Therefore, at best the pensionary and retirement benefits can be forfeited and denied, but an order of dismissal from service by invoking powers under clause(b) of the second proviso to Article 311(2) cannot be passed against the appellants - judicial officers. Subsequently, the counsel for the appellants - judicial officers did not press this contention as the matter is still pending before the State authorities, and the final order is yet to be passed. A challenge cannot be made in anticipation. Further, this challenge was also not the subject matter of the writ petitions in which the impugned order was passed and would constitute an entirely new cause of action. Counsels for the appellants - judicial officers have, accordingly, reserved their right to challenge the order if, and as and when it is passed. In view of the aforesaid position, we would not go into the merits of the said contention and leave the issue open. It is equally open to the respondents, that is, the State of Bihar and the High Court to examine this contention." It gave an opportunity to the State of Bihar and the High Court to review and reverse their orders which seems to have been based on unverifiable allegations. 

It also implies that Supreme Court has granted liberty to the three judicial officers to challenge the notification of General Administration Depart of Government of Bihar. All the documents and proceedings on record make it crystal clear that the dismissal was approved "without any inquiry" into the questionable allegations. It appears to be a classic case of State making an allegation and concluding that its allegations true without any inquiry. Can public institutions safeguard their legitimacy by concluding the veracity of their own allegations admittedly without any credible inquiry?  

Gopal Krishna

Supreme Court to hear Aurangabad District Judge Assault case on 15 January

On December 16, 2020, Supreme Court's three-judge bench headed by Justice AM Khanwilkar comprising of Justices B R Gavai and Krishna Murari sought the response of the Bihar government on a plea demanding judicial inquiry into physical attack on Dr. Dinesh Kumar Pradhan, a Bihar District judge by a police sub-inspector. The court has issued notice to the State of Bihar and posted the case for further hearing after 4 weeks in Vishal Tiwari vs. Union of India. The case was filed on November 2, 2020. It was registered on November 4, 2020 with Writ Petition.(Criminal) No.345/ 2020. It was verified on November, 2020. Union of India, State of Bihar, Director General of Police, Bihar and Superintendent of Police, Aurangabad are the respondents. The Sub-Inspector in question too has been impleaded as a respondent after Court had ordered petitioner, advocate Vishal Tiwari to do so. Upon  hearing the petitioner the Court passed an order which reads: "Application for impleadment is allowed. Cause-title be amended accordingly. Issue notice to the respondents, including the newly added respondents, returnable in four weeks." 

Earlier, on November 26, the Bench of Justices Khanwilkar and Ajay Rastogi had ordered: "Permission to appear and argue in person is granted. As prayed, petitioner is permitted to amend the petition to implead the concerned party as party-respondent(s) and also to file additional documents."

The Office Report of the Supreme Court dated November 26, 2020 states that " It is submitted that the instant matter pertains to petitioner-in-person, who is an Advocate and member of Supreme Court Bar Association.  It was telephonically communicated to petitioner-in-person regarding the date of hearing of matter."

The writ was filed in the aftermath of attack on District Judge in Bihar's Aurangabad seeking appropriate directions against the errant police officials who were allegedly involved in assaulting the District Judge, Dr. Dinesh Kumar Pradhan.

"Strict action must be taken against those involved in such kind of acts. This is an attack not against a judge, but on the judiciary," Vishal Tiwari has sought direction from the Supreme Court to set up a two-member inquiry commission in the matter for collecting the facts and evidence and for recording the evidence. He has prayed inclusion of sitting High Court judges in the inquiry commission who shall submit the report within a month and to initiate criminal contempt proceedings and punishment under The Contempt of Courts Act, 1971, against the erring police officials. He is seeking appropriate directions for punishing the higher police officials (Director General of Police, Bihar, Superintendent of Police, Aurangabad) for their alleged inaction. The prime accused is a Sub Inspector named Pranav of the Town police station, Aurangabad who allegedly abused, threatened, assaulted and attacked Pradhan, when he was on his evening walk on October 21. The Sub Inspector accompanied by paramilitary personnel was a flag march that time. It has been found that Pranav had a grudge against the judicial officer, Pradhan, as he had taken action against him and a few other police officers for dereliction of duty a few months back when he was the Aurangabad chief judicial magistrate.

The unprecedented, unwarranted assault and intimidation took place on October 21, 2020. Bihar Judicial Services Association and Association for Judges, Gujarat has condemned the incident. The Bihar Judicial Services Association wrote a letter to Bihar DGP on October 24, 2020  seeking action against erring officers. .The case is likely to be heard again in the Supreme Court on January 15, 2021. 

Tuesday, December 22, 2020

बिहार विधान परिषद् का पर्यावरण एवं प्रदूषण नियंत्रण समिति

बिहार विधान परिषद् के अंतर्गत पर्यावरण एवं प्रदूषण नियंत्रण समिति का गठन किया गया है जिसमें 3 पदेन सदस्‍य सदस्‍य रखे गए- 

(1 सुनील कुमार सिंह-अध्यक्ष
(2सोनेलाल मेहता-सदस्य
(3 प्रेम चन्द्र मिश्रा-सदस्य

समिति के विचारणीय विषय बिन्दु निम्नवत है-

  1. बक्सर से फरक्का तक गंगा के कटाव स्थलों एवं इस कटाव से प्रभावित क्षेत्रों को बचाने हेतु सभी संभव उपाय करना तथा तत्संबंधी कार्रवाई का निरीक्षण करना।
  2. गंगा के कटाव से बचाने के लिए केन्द्र सरकार, राज्य सरकार एवं अन्य निकाय तथा व्यक्तियों से संपर्क स्थापित करना।
  3. बिहार सीमांतर्गत गंगा के जल प्रदूषण को रोकने के लिए सभी संभव उपाय एवं कार्रवाई करना।
  4. जल प्रदूषण के लिए नीतियों एवं योजनाओं का निर्धारण करना, उनके कार्यान्वयन का निरीक्षण करना तथा आवश्यक अनुदेश देना।
  5. कारखानों एवं उद्योंगों का प्रदूषण जो गंगा में प्रवाहित होता है उसकी रोकथाम के उपाय करना।
  6. नगरपालिकाओं एवं नगर निगम द्वारा प्रदूषित जल या गंदगी जो गंगा में गिरती है, उसके निवारण का हर संभव उपाय करना।
  7. गंगा अपरक्षण एवं जल प्रदूषण के संबंध में समय-समय पर भारत सरकार से विचार-विमर्श करना तथा उचित सुझाव देना एवं कार्यान्वयन कराना।
  8. गंगा में प्रदूषित जल के स्रोंतों की जानकारी प्राप्त करना, उसके निवारण के लिए आवश्यक कार्रवाई करना।
  9. अन्य कोई विषय, जिस पर समिति जाँच और सिफारिश करना उचित समझे।

Yet another death in Ramco's asbestos factory in Bhojpur

Note: On December 22, 2020 Chief Minister communicated that he has forwarded the letter regarding death of a worker in the asbestos based unit of Chennai based Ramco Industries Limited in Bihiya, Bhojpur to Principal Secretary, Labour, Government of Bihar. Mihir Kumar Singh is the Principal Secretary of the Department of Labour. 



Shri Nitish Kumar 
Hon'ble Chief Minister
Government of Bihar

Date: 21/12/2020

Subject- Yet another death of a worker and violation of environmental laws by the two asbestos based units of Chennai based Ramco Industries Limited in Bihiya, Bhojpur


This is to draw your immediate attention towards the cruel death of yet another worker late Shri Shivji Yadav, s/o late Shri Dhurkhel Yadav in the asbestos based factory units of Chennai based Ramco Industries Limited in Bihiya, Bhojpur on the night of 19 December, 2020. The worker is a resident of Khadra village, Dawa Panchayat under Jagdishpur police station. The deceased worker is survived by his wife, 6 daughters and 2 sons. Earlier, one worker named Shri Barak Yadav too died while working in this factory. Bihar Human Rights Commission was seized with the latter case. The news report regarding the former is attached. 

I submit that First Schedule of Occupational Safety, Health & Working Conditions Code, 2020 refers to Industries involving hazardous processes including manufacture, handling & processing of Asbestos and ts products. Its Third Schedule lists incurable Asbestosis as a Notifiable Disease. Besides the villagers in the vicinity of Ramco's factories, all the workers face the threat of such health hazards and accidents. This Code has to be read along with the verdict of Hon'ble Supreme Court dated 27 January, 1995 in Consumer Education Research Centre v Union of India for effective implementation. 

I appreciate the legal action taken by the Bihar State Pollution Control Board (BSPCB) against the two units of asbestos based factories of Ramco Industries Limited located at Bihiya, Bhojpur pursuant to your instructions to the Board in response to villagers' petition to you against such hazardous factories. 

As a follow up of your previous action in this regard, I wish to draw your urgent attention towards the public health crisis as a consequence of ongoing unscientific and illegal disposal of hazardous and carcinogenic asbestos (dust & fibers) and broken asbestos based roofs by Chennai based Ramco Industries Limited in Bihiya, Bhojpuri, Bihar. It has endangered the human life and environmental health of Bihiya and the villages in the area besides the workers employed there. The picture is attached. 

I am aware that the Board's legal action could not become effective because of the order of a single judge bench of Hon'ble Patna High Court on the limited ground of violation of natural justice. The order of Justice Jyoti Sharan dated 30 March, 2017 had directed the Chief Secretary, State of Bihar to rectify the error of Chairman of the BSPCB and thev Appellate Authority happened to be Shri Vivek Kumar Singh. Source:

The fact remains this order too did not dispute the finding of the Board with regard to violation of the environmental laws. It did not dispute that as asbestos and asbestos based industries are heavily polluting and have been categorised as R24 in the Red Category (

Subsequently, a division bench of the Hon'ble High Court comprising Justices Ajay Kumar Tripathi and Niku Agrawal passed another order modifying the previous order in The Bihar State Pollution Control Board & others Vs M/S Ramco Industries Ltd. on 30 April, 2018 (Letters Patent Appeal No.873 of 2017 In Civil Writ Jurisdiction Case No. 421 of 2017. The order authored by Justice Tripathi reads: "Since Mr. Vivek Kumar Singh no longer happens to be the Chairman of the Bihar State Pollution Control Board, therefore, one of the reasons provided by the learned Single Judge for interfering with the order no longer holds good. It is left open to the new Chairman of Bihar State Pollution Control Board to pass a fresh order in accordance with law after hearing the parties." Source: 

In such a backdrop, I wish to draw your attention again towards the violation of all the general and specific conditions laid down in the NOC given by the Bihar State Pollution Control Board and the environmental clearance given by the Experts Appraisal Committee of the Union Ministry of Environment, Forests & Climate Change by the company's factories in question. 

I wish to draw your attention towards a news broadcast by a news channel titled - 

Ramco Company: सरकार के साथ साथ दे रही जनता को धोखा|
An official video of Ramco Industries Limited which authenticates the claims made in the news report is available with us which can be shared when required. It is not being shared right away because of it is a heavy file. 

In such a context, I submit that I have learnt the following methods in disposing of asbestos waste (dust and fibers) by the company in question:

1. Using excavators the broken sheets are crushed and buried deep inside factory premises. The broken pieces pose a grave threat to the ground water shared by fertile agriculture land and villagers who use it for drinking purpose. 

2. Since there is no space to bury the asbestos waste and broken asbestos products are sold to fictitious or  known dealers on ex- factory basis to discard company's responsibility for disposal. Normally, the destination of duch disposal will be in remote locations and buried on fertile lands or used for land filling and covered by sand permanently. It seems to be a corporate crime but logical from company's perspective as no one will pay 4 times the cost for transportation for a zero value material. 

3. The broken ast based sheets are cut inside factory into unmarketable sizes like 1 meter length and gifted as CSR activities. The cutting process emits lot of asbestos dust and fibers harmful for the workers and villagers. 

4. Broken asbestos sheets and wastes during transit handling or from customer end are brought to depot at various locations to harden top soil or land filling which again poses a threat to ground water. Cutting broken bigger asbestos sheets also pose danger as asbestos  fibers become air borne. 

5. Wherever cement is handled in bags inside factory it creates occupational hazard for workers due to asbestos dust particles. This is a threat to villagers as well because the air quality in the area gets polluted. 

6. Ramco Industries Limited has been donating asbestos based roofs to the nearby Mahthin Mai temple and to the parking space of the District Magistrate's office as an exercise in ethical positioning of it's bran and as a public relations exercise. Villagers, temple devotees and the district administration has been taken for a ride. They have acted in complete ignorance of Board's action against Ramco's factories.

In view of the above, I wish to request you to probe the health status of the communities linked to the factory and who reside in proximity of the two units of asbestos factories in Bihiya, Bhojpur run by Ramco Industries Limited besides the workers. Your prompt action will  safeguard the environmental health of present and future residents of Bhojpur in particular and all the residents of Bihar in general by imposing immediate ban on use of asbestos based products of all kinds in State. 

I appreciate for stance declaring in the State Assembly that Bihar Government will not allow construction of carcinogenic asbestos factories in the state on 1st July, 2019. This announcement is a vindication of the anti-asbestos struggle by villagers of Muzaffarpur, Vaishali and Bhojpur. 

I submit that the death toll of children in Muzaffarpur has revealed that asbestos cement sheets are quite unhealthy building materials which lead to morbidity and mortality by contributing to the deterioration of their health.

I submit that Board's action with regard to carcinogenic white chrysotile asbestos mineral fiber has been consistent with what is published on National Health Portal (NHP) , Centre for Health Informatics (CHI), National Institute of Health and Family Welfare (NIHFW), Ministry of Health and Family Welfare (MoHFW), Government of India. The National Health Portal states that “All forms of asbestos (chrysotile, crocidolite, amosite, tremolite, actinolite and anthophyllite) are in use because of their extraordinary tensile strength, poor heat conduction, and relative resistance to chemical attack. Chemically,s asbestos minerals are silicate compounds, meaning they contain atoms of silicon and oxygen in their molecular structure. All forms of asbestos are carcinogenic to humans. Exposure to asbestos (including chrysotile) causes cancer of the lung, larynx, and ovaries, and also mesothelioma (a cancer of the pleural and peritoneal linings).

Asbestos exposure is also responsible for other diseases such as asbestosis (fibrosis of the lungs), and plaques, thickening and effusion in the pleura.”  It observes that “Exposure to asbestos occurs through inhalation of fibers in air in the working environment, ambient air in the vicinity of point sources such as factories handling asbestos, or indoor air in housing and buildings containing friable asbestos materials.”

I wish to draw your urgent attention towards the order of Kerala Human Rights Commission (KHRC) that has ruled that exposing Indians to asbestos is a human rights violation. This paves the way for the eventual complete ban on asbestos and its products. On January 31, 2009, the KHRC ruled that the government should take steps to phase out asbestos roofing from all schools in the state. Bihar State Pollution Control Board can act of this recommendation as well.

I submit that so far Hon'ble Supreme Court’s order of 27 January, 1995 in Writ Petition (Civil) No. 206 of 1986 cannot be ignored without endangering residents of Bihar. Hon'ble Court observed: “The development of the carcinogenic risk due to asbestos or any other carcinogenic agent, does not require a continuous exposure. The cancer risk does not cease when the exposure to the carcinogenic agent ceases, but rather the individual carries the increased risk for the remaining years of life. The exposure to asbestos and the resultant long tragic chain of adverse medical, legal and societal consequences, remains the legal and social responsibility of the employer or the producer not to endanger the workmen or the community of the society. He is not absolved of the inherent responsibility to the exposed workmen or the society at large.”

I submit the state government was supposed to incorporate specific directions of the Court with regard to fresh ILO Resolution of June 14, 2006 introducing a ban on all mining, manufacture, recycling and use of all forms of asbestos besides WHO‟s resolution of 2005 seeking elimination of future use of asbestos but it has been ignored so far.

I wish to also draw your attention towards what Government of India’s National Health Portal states: “The burden of asbestos-related diseases is still rising, even in countries that banned the use of asbestos in the early 1990s. Because of the long latency periods attached to the asbestos related diseases, stopping the use of asbestos now will result in a decrease in the number of asbestos-related deaths only after a number of decades. There is no safe use of asbestos and no safe limits set by WHO, ILO (International labour organization)” . It discloses that “The prevalence of asbestosis in four cement factories (Ahmadabad, Hyderabad, Coimbatore and Mumbai) varied from 3% to 5%” and “In asbestos textile industry prevalence of asbestosis was 9% in workers having less than 10 years exposure, in contrast to the reported average duration of over 20 years”  (National Health Portal, Government of India).

I submit that in a reply to the Parliament, Union Minister of Health and Family welfare stated that “The Ministry of Mines has informed that the Grant of fresh mining leases and renewal of existing mining leases for Asbestos are presently banned in the country on Health Grounds”  (Union Ministry of Health and Family welfare, 2014). He also shared the findings of the Indian Council of Medical Research (ICMR), Union Ministry of Health and Family welfare which has “informed that major health hazards of asbestos include cancer of lung, mesothelioma of pleura and peritoneum and specific fibrous disease of lung known as asbestosis. All types of asbestos fibers are responsible for human mortality and morbidity….” This has been shared by the Union Minister for Health and Family Welfare in a written reply to the Parliament and released by Press Information Bureau, Government of India. This reply corroborates your observation in the State Assembly.

I was saddened when Ramco company' factories in Bhojpur’s Bihiya managed to get relief from Hon’ble Patna High Court on a grossly procedural
ground of violation of natural justice. This procedural error ought to be rectified and the operation of the two units of an asbestos company must be stopped. Its operation is a case of environmental health lawlessness. It has dumped hazardous asbestos waste in the agricultural fields and has been spewing toxic asbestos dust at night.

It has violated every specific and general condition which has been stipulated in the environmental clearance and the No Objection Certificate. It may also be noted that when a worker died in this factory, his family was given a compensation of Rs 5, 000. The factory seemed to have the patronage of Bhojpur administration by donating asbestos roofs to it for its parking. This situation creates a compelling logic for medical investigation of the environmental health status of the village and temple communities living in the vicinity of these units and the workers of these two factories owned by the same company. The probe can reveal the extent of asbestos related diseases in this area because of environmental exposure. 

Let me take the opportunity to mention the  the fact that all asbestos based products have a life-span, it is natural that all asbestos based products are potential asbestos wastes. This state of sad affairs is crying for attention. At present Indian railways is removing asbestos cement roofs from all the railway stations and platforms in Bihar like elsewhere but it is not being disposed of in a scientific and safe manner. 

In view of the above, I submit that the Board must be asked to reiterate its order on immediate closure of Ramco's hazardous factories, to create a Master Plan for decontaminating all asbestos laden government buildings including legislative and judicial buildings and discontinue public procurement of asbestos based products including asbestos cement pipes for water supply in Bihar. It s necessary to initiate preventive action in order to protect present and future generations of Bihar from the silent killer mineral fibers of asbestos which  are akin to a ticking time bomb.

I will be glad to share more relevant information in this regard.

Thanking you in anticipation.

Yours Sincerely

Gopal Krishna, LL.M

Friday, December 18, 2020

आसान शिकार : मंगलेश डबराल (16 May 1948- 9 Dec 2020)

मनुष्य की मेरी देह ताकत

के लिए एक आसान शिकार है

ताकत के सामने वह इतनी दुर्बल है

और लाचार है

कि कभी भी कुचली जा सकती है

ताकत के सामने कमजोर और

भयभीत हैं मेरे बाल और नाखून

जो मेरे शरीर के दरवाजे पर ही

दिखाई दे जाते हैं

मेरी त्वचा भी इस कदर पतली

और सिमटी हुई है

कि उसे पीटना बहुत आसान है

और सबसे अधिक नाजुक और

जद में आया हुआ है मेरा हृदय

जो इतना आहिस्ता धड़कता है

कि उसकी आवाज भी शरीर से

बाहर नहीं सुनाई देती

ताकत का शरीर इतना

बड़ा इतना स्थूल है

कि उसके सामने मेरा अस्तित्व

सिर्फ एक सांस की तरह है

मिट्टी हवा पानी जरा सी आग

थोड़े से आकाश से बनी है मेरी


उसे फिर से मिट्टी हवा पानी और

आकाश में मिलाना है आसान

पूरी तरह भंगुर है मेरा वजूद

उसे बिना मेहनत के मिटाया जा

सकता है

उसके लिए किसी अतिरिक्त

हरबे-हथियार की जरूरत नहीं


यह तय है कि किसी ताकतवर

की एक फूंक ही

मुझे उड़ाने के लिए काफी होगी

मैं उड़ जाऊंगा सूखे हुए पत्ते नुचे

हुए पंख टूटे हुए तिनके की तरह

कभी-कभी कोई ताकतवर थोड़ी

देर के लिए सही

अपने मातहतों को सौंप देता है

अपने अधिकार

उनसे भी डरती है मेरी मनुष्य देह

जानता हूं वे उड़ा देंगे मुझे अपनी

उधार की फूंक से.

Tuesday, December 15, 2020

Legislations galore during pandemic in Bihar

During the lockdown period between August 2020-November 2020, some 12 ordinances have been promulgated in Bihar. 

The Contract Labour (Regulation and Abolition)( BiharAmendment) Act, 2020 has repealed of The Contract Labour (Regulation and Abolition) (Bihar Amendment) Ordinance, 2020. (Bihar Ordinance No-06- 2020 pursuant to the satisfaction of Governor and the the instruction from the President of India on 20 October, 2020. This was necessitated by the Covid-19 pandemic which has deteriorated the industrial and economic activities in the State of Bihar. It is aimed at providing impetus to the industrial and economic activities in the State. It has been deemed important to provide new opportunities for industrial investment in the State. By this act, sub-section 4 of section 1 of the the Contract Labour (Regulation and Abolition) Act, 1970 has been amended. 

The Factories (Bihar Amendment) Act, 2020 has repealed the Factories (Bihar Amendment) Ordinance, 2020. (Bihar Ordinance No-08- 2020). It has amended section 2, section 5 and section 85 of the the Factories Act, 1948. As per the amendment, a new section 5 A has been inserted after Section by of the Factories act, 1948. Section 5-A provides "Power to exempt new factories in public interest". It states that where the State Government is satisfied in the public interest that it is necessary to create more economic activities and employment opportunities, it may, by notification in the official Gazette, exempt, subject to such conditions as it may think fit, any new factory or class or description of news factories which are established and whose commercial production start, from all or any of the provisions of this Act for a period of one thousand days from the date on which such commercial production start." It explains that for the purpose of this section the expression "New Factory or class or description of new factories" means such factory or class or description of factories which are established and whose commercial production start within a period of one thousand days after the commencement of the Factories (Bihar Amendment) Act, 2020.

The Industrial Disputes (Bihar Amendment) Act, 2020 has repealed The Industrial Disputes (Bihar Amendment) Ordinance, 2020. (Bihar Ordinance No-07- 2020. It amends section 25 K of Industrial Disputes Act, 1947. As per the amendment, a new section 36-C has been added after the sub section 36 (B) of the Industrial Disputes Act, 1947. Section 36-C provided power to exempt new industries in public interest. It states that here the State Government in satisfied in relation to any new industrial establishment or new undertaking or class of new industrial establishments or new undertaking that it is necessary in the public interest to do so, it may, by notification in the official Gazette, exempt, conditionally or unconditionally, any such new establishment or new undertaking or class of new establishments or new undertaking from all or any of the provisions of this Act for a period of one thousand days from the date of the establishment of such new industrial establishment or new undertaking or class of new establishments or new undertakings, as the case may be". It too explains that for the purposes of this section, the expression "new industrial establishment or new undertaking or class of new industrial establishment or new undertakings" means such industrial establishment or undertaking or class of industrial establishments or undertakings which are established within a period of one thousand days after the commencement of the Industrial Disputes (Bihar Amendment) Act, 2020.

Prior to this Bihar Settlement of Taxation Disputes Ordinance, 2020 was promulgated by the Governor on 21st September 2020. The Bihar Settlement of Taxation Disputes Bill, 2020 has been placed on the table of the Vidhan Sabha. 

Besides the above mentioned laws, numerous subordinate legislations have been framed by the state and central governments. Legislators, judges, lawyers, jurists, scholars, students and informed citizens have a duty to undertake rigorous scrutiny of these legislations and subordinate legislations to prevent emergence of unlimited governments, which pay no heed to limitations imposed by the Constitution of India.   

Wednesday, November 4, 2020

The strange case of Nitish's dissenting voice within NDA

From opposing the NPR and NRC to demanding particular standing for Bihar to staying out of the Union Cupboard on precept to displaying the BJP who was boss in Bihar, Nitish Kumar has wasted no alternative at cocking a snook on the BJP management.

However how lengthy can he proceed, asks Gopal Krishna. 

As a consequence of the protest by the Communist Celebration of India-Marxist-Leninist, Congress and Rashtriya Janata Dal in opposition to the Nationwide Inhabitants Register/Nationwide Register of Residents,the Bihar meeting unanimously handed a decision to not implement the NRC within the state and in opposition to the brand new format of the NPR on February 25, 2020.

It was a results of the dialog between the Opposition events and the Janata Dal-United. The Bharatiya Janata Celebration was constrained to assist the decision at the same time as its Jan Jagran Abhiyan was underway to make individuals conscious concerning the CAA, NRC and NPR in several districts of Bihar.

Deputy Chief Minister Sushil Kumar Modi, the BJP chief within the legislative council, had introduced that ‘the primary section of Census 2021 and the method of the Nationwide Inhabitants Register in Bihar could be achieved between the interval of Might 15 and June 28, 2020’.

Modi had additionally tweeted saying that the Bihar authorities has issued a notification on December 18, 2019 to this impact. ‘No authorities has the braveness to cease the NPR train of their respective states,’ he added.

As an alternative of endorsing the BJP’s place, JD-U President and Chief Minister Nitish Kumar assured the Bihar meeting that the NRC is not going to be carried out within the state and the NPR could be carried out in its outdated, 2010, format.

The CM took the place that he had no drawback if the Home took a unanimous resolution to not implement the NRC within the state. This place was supported by the Chief of Opposition Tejaswi Yadav following which the Home unanimously handed a decision for a similar to the BJP’s dismay.

Such a categorical place revealed that the JD-U is among the Opposition voices throughout the BJP-led Nationwide Democratic Alliance. After the exit of the Shiv Sena and Akali Dal, it stays the one dissenting voice throughout the NDA. Rashtriya Lok Samta Party too left the NDA in 2018. 

Inspired by the passage of the unanimous decision on the NPR/NRC, the JD-U president reiterated his demand for particular class standing to the state on the twenty fourth Japanese Zonal Council assembly chaired by Union Residence Minister Amit Anilchandra Shah in Bhubaneswar.

Notably, the Bihar meeting has handed a unanimous decision asking the state authorities to take an all-party delegation to Prime Minister Narendra Damodardas Modi on this regard.

The JD-U had submitted 1.25 crore signatures in assist of the demand in 2011 to the prime minister. In 2012, the JD-U president took out an Adhikar Yatra, organised rallies in Patna and Delhi in assist of the demand.

Particular standing for Bihar has been a difficulty since 2006. It was the JD-U’s fundamental promise within the 2009 Lok Sabha polls, the 2010 meeting polls, after which the 2014 Lok Sabha and the 2015 meeting polls.

The BJP-led NDA authorities has betrayed the individuals of Bihar, because the PM had promised particular standing to the state throughout his 2014 Lok Sabha ballot marketing campaign.

The JD-U president had raised the problem on the Inter-State Council assembly in Delhi in July 2016. In Might 2017, he sought particular standing and help for Bihar in a three-page letter submitted to the prime minister.

Besides from June 2013 to August 2017, the JD-U has been part of the NDA since its inception. In 2019, the JD-U president determined in opposition to becoming a member of the Union Cupboard as a result of its proposal for proportionate illustration within the authorities didn’t get a constructive response.

The BJP management was providing just one Cupboard ministership as a symbolic gesture, a proposal the Lok Janshakti Celebration readily accepted.

The JD-U has 16 Lok Sabha MPs and 6 Rajya Sabha MPs. However the central authorities remained deaf to its argument that it had given proportionate illustration to the BJP within the state authorities regardless of the JD-U not being included within the first Union Cupboard constituted in 2014.

Instantly after the JD-U president returned to Patna after attending the swearing-in ceremony of Prime Minister Modi and his council of ministers, he despatched a transparent message to the BJP with the enlargement of his state cupboard that the BJP might management the Centre however in Bihar the JD-U’s is the final phrase.

He unequivocally spoke in opposition to ‘sanketic pratnidhitav (symbolic illustration)’ which has been accepted by events just like the LJP. Responding to the therapy by the BJP management, he expanded his cupboard in Bihar with eight JD-U ministers.

It’s tough to recall cases whereby the BJP management agreed to any of the JD-U chief’s calls for within the curiosity of Bihar.

The supreme BJP chief publicly refused the JD-U president’s proposal for Patna College to be declared as a central college in October 2017.

On the event of the centenary celebration of Patna College’s central library, in August 2019, Nitish Kumar reiterated his demand for the standing of central college for Patna College, however to no avail.

Most not too long ago, on September 21, 2020, when Nitish Kumar emphasised the necessity to prolong the Purvanchal Expressway, which connects Ghazipur district in Japanese Uttar Pradesh with Lucknow to Buxar, the supreme BJP chief selected to not give a constructive response.

The extension of the highway by one other 17 kilometres from Ghazipur to Buxar might help Bihar join instantly with the nationwide capital.

The denial of Bihar’s share of oblique tax income beneath the GST regime is round Rs 12,000 crore for 2020-2021. That is more likely to develop into an election concern.

Bihari events can be part of palms to withstand such financial injustice the best way Punjabi events have joined palms on the problem of agriculture and farmer associated legal guidelines. The JD-U has been in alliance with virtually each social gathering in Bihar, together with the CPI and CPI-ML, within the latest previous.

The JD-U’s absence from the NDA authorities on the Centre and the absence of Ram Vilas Paswan, the one Cupboard minister from among the many BJP allies within the state, has created a brand new state of affairs.

Until now solely the supreme chief has been chopping him all the way down to dimension to disclaim him a fourth time period as chief minister, however now it appears the brand new LJP supremo has been unleashed on him to silence the final dissenting voice throughout the NDA.

There are not less than two sorts of Opposition voices — one is carnivorous and the opposite is herbivorous.

Historical past reveals that each get tamed by some means by the donors by State energy, however data reveal who remained a dissenting voice and a voice of the individuals amidst all of the structural compulsions engineered by limitless nameless donors.

The temptation to readily fall prey to lazy binaries and dualities makes one miss myriad layers of opposition in world politics in addition to native politics.

If one stays hostage to pre-existing language which is caught in a time warp, one is left with the posh of post-result evaluation.

As to the guarantees being made publicly by the BJP with regard to his management in Bihar, one is reminded of what British parliamentarian Edmund Burke mentioned in December 1783 concerning the East India Firm: ‘The Firm has by no means made a treaty which they haven’t damaged.’

Monday, November 2, 2020

Supreme Court asks Bihar DGP, High Court Registrar General reasons behind 21 year delay

Supreme Court's Bench of Justices NV Ramana, Surya Kant and Aniruddha Bose heard an appeal on October 15, 2020 filed by the accused husband in a dowry death case in Bachcha Pandey v State of Bihar [Special Leave to Appeal (Criminal) No.4769/2020].The appeal arose out of impugned final judgment and order dated July 6, ­2020 in Criminal Miscellaneous No.21680/2020 passed by Justice Madhuresh Prasad of the Patna High Court. It upheld High Court's order. 

In its order, the Supreme Court observed: "The materials placed on record indicate a shocking state of affairs." The order records the sequence of events. In this case a First Information Report was registered as far back as on February 2, 1999 against Bachcha Pandey, the petitioner and some of his relatives under Sections 304B, 201 and 34, IPC based on a complaint made  by the brother of  the  deceased (wife  of  the  Petitioner). A perusal of the records suggest that the petitioner got married to the   deceased in 1993. The deceased was allegedly  harassed continuously by the petitioner and his family for dowry, and was even thrown out by the petitioner and his family, after they took her jewellery. The deceased apparently started living with the petitioner and his family again, consequent to an agreement prepared  by the petitioner in court. It was alleged by the complainant that he was informed by unknown persons about the death of his sister, whose funeral ceremonies were being completed by the petitioner and his family without informing the deceased’s side of the family.   

The court's order records that after nearly 10 years, a final report/charge­sheet was filed in the case against all the accused named in the FIR, including the petitioner, on September 30, 2009. The final report notes that “sufficient evidence has been made available for charge­sheet against all the accused  named in the FIR”.   

Besides this, the order dated February 14, 2020, passed by the Patna High Court while dismissing the petitioner’s anticipatory bail application, being Criminal Miscellaneous No. 64116 of 2019, noted that as per the case diary a “very highly poisonous substance was detected in the viscera examination of the deceased”. 

The court observed that despite the seriousness of the allegations, it is quite alarming that no actions  were taken by the police against the petitioner. After the elapse of more than 20 years since the incident  and the registration of the FIR, the petitioner was arrested in relation to the case only on June 7, 2020. Thereafter, the petitioner filed a bail application before the Additional District and Sessions Judge  which was rejected on June 12, 06.2020. Being aggrieved, the petitioner filed a bail application before the High Court, being Criminal Miscellaneous No. 21680 of 2020, which was dismissed vide  impugned order dated July 6, 2020. 

The court's order reads: "The flagrant delay in conducting the investigation and prosecution of the accused  in connection with the serious crime involving the death of a young married woman is extremely troubling, and the reasons for the same are unclear. In the above facts and circumstances, we are not inclined to interfere with the impugned order of the High Court, or to extend the benefit of bail to the petitioner. His plea is therefore dismissed at this stage." The petitioner from Vaishali had challenged the aforementioned order before the Supreme Court  by way of the present Special Leave Petition.  

The court issued notice to the Director General of Police, Bihar as well as the Registrar General of the Patna High Court with a direction to them to place before us a report about the particulars of the present case, particularly with respect to the reasons behind such inordinate delay. The matter is likely to be listed before the court on November 11-12 after four weeks. 

Supreme Court asks Registrar General, Patna High Court to explain inordinate delay in uploading order

On October 15, 2020 Supreme Court's Bench of Justices S K Kaul and Dinesh Maheswari heard a Special Leave Petition (Civil) Diary No. 9469 of 2020 arising out of impugned final judgment and order dated January 24, 2018 in Letters Patent Appeal (LPA) No. 2138/2016 passed by Patna High Court in the matter of State of Bihar v Raj Kumar Yadav. 

Upon hearing the matter, the Supreme Court passed an order. The order reads: "There is an inordinate delay of 733 days as stated by the learned counsel (not 333 days as set out in the application and the office report). This aspect be verified by the Registry." It further reads: "We find from the averments made in paragraph 4 of the application that the impugned judgment was pronounced on 24th January, 2018 but was uploaded on the website on 1st May, 2019." 

The court directed: "We call upon the Registrar General of the Patna High Court to submit the report to us whether the aforesaid facts are correct and the reasons for the same. List on 28th October, 2020. A copy of the order be forthwith forwarded to the Registrar General, Patna High Court." 

Notably, the Letters Patent Appeal (LPA) No.2138 of 2016 in Civil Writ Jurisdiction Case No. 6299 of 2014 was heard in the High Court by the Division Bench of Chief Justices Rajendra Menon, and Justice Anil Kumar Upadhyay on January 24, 2018. The Appellants were: the State of Bihar, through the Principal Secretary, Public Health Engineering Department, Government of Bihar, the Joint Secretary, Public Health Engineering Department, the Engineer-in-Chief-cum- Special Secretary, Public Health Engineering Department, Muzaffarpur, the Regional Chief Engineer, Public Health Engineering Department, Muzaffarpur and the Executive Engineer, Public Health Engineering Division, Dhaka, East Champaran. The repondent was Raj Kumar Yadav, Son of Sri Deo Narayan Yadav, Resident of Village Dhobiyahi, P.O.-Vijiyatola Bela Singar Mositola Dhobiya, Via- Nirmali, P.s.-Nirmali, District- Supaul. The appeal of the State was dismissed. 

The dismissal order of the Chief Justice headed Division Bench is as under:

1. The present interlocutory application has been filed for condoning the delay of 149 days in filing the appeal. 

2. For the reasons mentioned in the interlocutory application, I.A. No. 8943 of 2016 is allowed and the delay in filing the appeal is condoned.

3. This is an appeal filed by the State Government calling in question tenability of order dated 25.04.2016 passed by the writ court in C.W.J.C. No. 6299 of 2014.

4. Writ petitioner along with six other persons approached this Court challenging their disengagement as Chowkidar brought into force with effect from 22.01.2014. Even though the petitioner was found to have been engaged in the Work-charged Establishment w.e.f.17.01.1991, he has been denied regularization on the ground that his appointment was after cut-off date 18.01.1991, whereas in the case of other six similarly situated persons, who also visited this Court in C.W.J.C. No. 5509 of 2002 along with the petitioner, they have been reinstated and granted the benefit only on account of the fact that they were appointed vide letter dated 31.12.1990 before the cut-off date. The learned Writ Court examined the issue and found that the petitioner was also engaged much earlier, but merely because of the hyper technical view of the State Government, he is denied similar benefit like the other employees, who are appointed few days before the petitioner. The learned Writ Court found that there has been discrimination in the matter and granted relief to the petitioner.

5. In doing so, we are of the considered view that the learned Writ Court has not committed any error. We find that the petitioner was initially engaged as Chowkidar in work-charged establishment on daily wage basis along with 8 persons and when the other 8 persons have been granted the benefit, merely on the hyper technical ground of engagement of the petitioner after a few days of the cut-off date the benefit could not be denied taking note of the fact that he was engaged as daily wages employee and the employer initially had done in the case of other seven employees before bringing them into the work-charged establishment. The learned Writ Court having analyzed all these factors and having issued the direction, the State Government as a model employer should have implemented the same, as was done in the case of other six employees.

6. Accordingly taking note of the totality of the facts and circumstances, we see no reason to make any indulgence into the matter.

7. The appeal stands dismissed.

The proceedings of the High Court reveals that this appeal was filed against the order of Justice Ajay Kumar Tripathi dated April 25, 2016 in Raj Kumar Yadav v State of Bihar & others. 

Justice Tripathi's order reveals that petitioner decided to file the writ application when he felt discriminated by the respondent’s decision not to regularize his service despite working in the work- charged establishment from the year 1991. By virtue of the decisions in question, the petitioner’s engagement as a Choukidar has been brought to an end with effect from July 31, 2014. The petitioner was engaged on January 17, 1991 by the Executive Engineer, Dhaka to work as a Choukidar. That engagement continued for quite some time. However, in between the petitioner was disengaged with similarly appointed persons, some of the names are indicated in paragraph 3 of the writ application. When such decision was taken, the petitioner along with others moved the High Court. The High Court intervened and petitioner continued to discharge his duty on the basis of order passed in CWJC No.2262 of 1997. Again the same fate visited the petitioner and some others when CWJC No.5509 of 2002 was filed and interim protection was granted. Petitioner along with others was reinstated. Subsequently the exercise for regularization was taken up by the respondent authorities. The respondents decided to regularize six of the persons, who were petitioners before the High Court earlier, but left out the name of the petitioner for such regularization on the ground that petitioner’s engagement has been after December 11, 1990, the cut-off date. 

Ramendra Nath Mukhopadhaya, the petitioner's lawyer submitted that the reasons provided or given by the respondents in their counter affidavit is not only erroneous but even fallacious and misleading. They are trying to make a hyper distinction between the engagement or appointment of the petitioner vis-à-vis other similarly situated persons on various posts. Yet another distinction provided was that one of the person though appointed after the petitioner was engaged as a Jeep Driver, therefore, his case is different from that of the petitioner.  

The court went through the so-called letters of engagement and appointments of some of the other persons, who have been regularized.

Justice Tripathi observed: "The issue is regularization of such persons by virtue of long stint of work and has nothing to do with the post on such engagements are made. The engagement of the petitioner and the others, who are regularized, have been done by the same authority in similar kind of time frame, may be with the difference of a month or two but the basic fact of their engagement and continuance since then cannot be a subject matter of dispute and the distinction sought to be drawn for conferring benefit of regularization on some and leaving out the case of the petitioner does not seem to be on cogent and for valid reason."

He further observed: "It is also taken note of that merely because the petitioner continued by virtue of a judicial order that cannot work against him because it is the continuance whether by indulgence shown by the State or protection given by the Court, will make no difference. It is the length of service and continuance which brings such persons within the zone of consideration for regularization."

He concluded: "The State, therefore, cannot be permitted to discriminate on grounds, which are not germane to the basic issue of regularization. The Court opines that the case of the present petitioner and the background thereto is no different than some of the other persons, who have been conferred the benefit of regularization." He quashed the impugned orders of the state. 

Justice Tripathi allowed the writ with directions saying, "The respondent authorities are directed to reconsider the claim of the petitioner for regularization in the work- charged establishment under the respondents within a period of three months from the date of production of a copy of this order." 

Now the case is in the Supreme Court and has been heard with a Diary Number. It has not be allotted any case number as yet. The information available on Supreme Court's website and causelist does not indicate that the matter was on October 28, 2020 before Justice Kaul Bench. 

Sunday, November 1, 2020

District Judge, Aurangabad assaulted by a S.I. of Bihar Police

On October 21, 2020 an the unprecedented, unwarranted assault and intimidation occurred with  Dr. Dinesh Pradhan, District Judge, Aurangabad, Bihar by Bihar Police. Bihar Judicial Services Association and Association for Judges, Gujarat has condemned the incident.

Citizens Forum for Civil Liberties (CFCL) has taken note of the Letter of Condemnation dated October 31, 2020 in the matter of unprecedented and unwarranted assault on Dr. Dinesh Pradhan, District Judge, Aurangabad, Bihar on October 21, 2020 by S.I. Pranav of Bihar Police in reaction to action against him and a few other police officers by Judge Dr. Pradhan for dereliction of duty a few months back when he was the chief judicial magistrate, Aurangabad. 

CFCL has sought details of the letters/statements of Bihar Judicial Services Association including its  October 24 letter to DGP and letters/statements of All India Judges Association. It is also looking for a copy of the Aurangabad DM's order initiating an inquiry into the matter, written application against erring police personnel with Town Police Station prior to the incident and after the incident. It is not clear as yet whether Supreme Court or High Court has taken cognisance of the letters in this regard.  

Association of Judges have rightly said that "This is not an assault on and insult with Dr. Pradhan   only  but   is   assault   on   and   insult   of the whole subordinate Judiciary of the nation." Unless higher judiciary ensures stringent exemplary action, the day is not far when the spark will reach the judges of High Courts and Supreme Court. State Government is expected to act immediately against the erring policemen after the elections. 

Two urgent issues around Bihar Assembly Elections 2020

Issue 1: Association for Democratic Reforms (ADR)'s petition challenging Finance Act, 2017- Electoral Bonds and Removal of company's limit to donate

This petition challenges the Finance Act, 2017 which was enacted as a money bill which introduced the electoral bond scheme for the purpose of electoral funding. The Act has also removed the previous limit of 7.5% of the company’s average three-year net profit for political donations. A company is no longer required to name the political parties to which such contributions are made. The donors’ name is also not revealed to the public. These amendments will result in opaqueness, heighten the odds of conflict of interest and also drastically increase black money and corruption. It will also lead to the creation of shell companies and rise of benami transactions to channelize the undocumented money into the political and electoral process in India.

Previously, ADR had filed two applications (in March, 2019 and November, 2019) for grant of stay on the implementation of the Electoral Bond Scheme, 2018, notified by the Central Government on January 2, 2018.   

  1. ADR's petition was last heard by the Supreme Court on 20-01-2020 and hasn't been listed since then, i.e., for the last 9 months, even though very significant questions concerning democratic functioning of the country are raised in the instant matter which requires urgent adjudication. 
  2. Right before the Bihar Legislative Elections, in the XIV Phase of sale,  the State Bank of India has been authorized to issue and encash Electoral Bonds through its 29 Authorized branches with effect from. 19.10.2020 to 28.10.2020.
  3. Even though a notification, dated 02.01.2018, stipulates sale of electoral bonds in January, April, July and October months of each year; the window was not opened in April and July, but was opened in October'20, right before the Bihar Legislative Elections.
  4.  ADR has moved to the Supreme Court amidst Bihar Assembly Elections 2020 seeking urgent hearing of its 2017 PIL challenging the 2018 Electoral Bonds Scheme.

Issue 2: Reasons for fielding candidates with criminal background

Supreme Court directions dated 13th February 2020 is as under:  

1) It is mandatory for political parties at the Central and State election level to upload on their website detailed information regarding candidates with pending criminal cases including the nature of the offences, relevant particulars like whether charges have been framed, the concerned Court, the case number etc.

2) Political parties will also have to give reasons for such selection and why other individuals without criminal antecedents could not be selected as candidates.

3) The reasons as to selection shall be with reference to the qualifications, achievements and merit of the candidate concerned, and not mere “winnability” at the polls. 

4) This information shall also be published in: (a)One local vernacular newspaper and one national newspaper; (b)On the official social media platforms of the political party, including Facebook & Twitter. 

5) These details shall be published within 48 hours of the selection of the candidate or not less than two weeks 4 before the first date for filing of nominations, whichever is earlier.

6)  A report of compliance shall be submitted by party with the Election Commission within 72 hours of the selection of the said candidate.  

7) Election Commission shall bring such non-compliance by the political party concerned to the notice of the Supreme Court as being in contempt of this Court’s orders/directions.  

Status (As on 29th Oct'20)

1. In the ongoing Bihar Legislative Elections, only four* political parties ( JDU, INC, CPI(M-L)L and RJD) out of 187, have listed the reasons for fielding candidates with criminal background.
2. Common reasons listed by these political parties are:
  • Popularity
  • Social worker
  • Educational background
  • Cases filed due to political vendetta by rival political parties
  • Cases are old
  • Good effort put in for handling Covid-19 crisis
3. Most of the political parties submitted the reasons post the deadline. 
4. Most of the reasons given by political parties are not rational and justified as clearly directed by the Supreme Court in its order dated 13th February 2020.
5. It is to be noted that out of 187 political parties participating in these elections, there are a large number of political parties which do not have a website.

Taking note of these facts, Maj Gen Anil Verma (Retd.), Head of ADR said, "In the Bihar Phases I & 2, political parties fielded 33% candidates and in the MP, UP & Gujarat Bye-elections around 18% candidates have declared criminal cases against themselves. This shows a complete disregard of the SC & ECI directions by the political parties. Such unfounded and baseless reasons given by political parties like popularity of the person, does good social work, cases are politically motivated etc. are not sound and cogent reasons for fielding candidates with tainted backgrounds. This data clearly shows that political parties have no interest in reforming the electoral system and our democracy will continue to suffer at the hands of lawbreakers who become lawmakers. To strengthen our democracy, the voters have to play a decisive role in refusing to elect tainted candidates and vote for NOTA".