Allahabad High Court

Anil Kumar Gupta, Principal ... vs Pawan Kumar Singh And 22 Others on 9 September, 2015

Bench: Bala Krishna Narayana, Vijay Lakshmi




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 A.F.R.
 
Reserved
 
Court No. - 40
 

 
Case :- CONTEMPT APPEAL No. - 4 of 2014
 

 
Appellant :- Anil Kumar Gupta, Pri ncipal Secry., Home And Another
 
Respondent :- Pawan Kumar Singh And 22 Others
 
Counsel for Appellant :- Ramesh Upadhyay, C.S.C.
 
Counsel for Respondent :- V.K. Singh,G.K. Singh
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(Delivered By Hon'ble Mrs. Vijay Lakshmi, J.)

The present appeal, under Section 19 of the Contempt of Courts Act, 1971, has been filed by Principal Secretary Home, Government of U.P. Lucknow and Director General of Police, U.P. Lucknow, questioning the legality and correctness of the order dated 05.03.2014, passed by learned Single Judge of this Court in Civil Misc. Contempt Petition No. 1140 of 2009; Pawan Kumar Singh & others Vs. Kunwar Fateh Bahadur Singh, Principal Secretary, Lucknow & others, whereby the learned Single Judge, while observing that a prima facie case of non compliance of the judgment of the writ Court is made out, has directed both the appellants to remain present before the Court on the date fixed.

Heard Sri Ramesh Upadhyay, learned Chief Standing Counsel, assisted by Sri Neeraj Upadhyay, learned Additional Chief Standing Counsel and Sri Piyush Shukla, learned Standing Counsel, for the appellants and Sri G.K. Singh, assisted by Sri H.P. Sahi, learned counsel for the respondents. Perused the record.

The order assailed in this appeal, for convenience, is quoted below:-

"Heard learned counsel for the applicants and Sri Ramesh Upadhyay, learned Chief Standing Counsel, representing the Principal Secretary (Home), U. P. Government, Lucknow and the Director General of Police, U.P., Lucknow.

Services of about 20,000 constables of civil police (including the applicants) were terminated enmass in the year 2007 by a couple of Government orders. The Government orders were challenged by way of large number of writ petitions which were clubbed together and the writ Court vide order dated 8th December, 2008 allowed the writ petitions and quashed the Government orders whereby the termination had been directed. The State Government preferred intra court appeals which were also dismissed by the Division Bench on 4th March, 2009. Thereafter contempt proceedings were initiated. In the meantime the State Government filed Special Leave Petition before the Apex Court and ultimately under interim order of the Apex Court dated 25.5.2009 the terminated constables were given appointment letters and were allowed to join on 27.05.2009. Subsequently the Special Leave Petition has been got dismissed as withdrawn by the State on 3.3.2013. The effect of the dismissal of the Special Leave Petition as withdrawn is that the judgement of the writ Court stands affirmed and its implementation is to be considered.

The effect of the termination orders being quashed would be that there was no termination order in the eye of law and the terminated employees would be deemed to be in continuous service and entitled to all consequential benefits. It is not an issue that all the terminated constables have been reinstated w.e.f. 27.5.2009 and they are receiving their salary ever since then. The only issue which remains to be considered is as to whether they would be entitled to uninterrupted service benefits from the date of entering into service and also with regard to their entitlement to payment of salary / back wages for the period they have remained under termination i.e. from the date of termination till the date of reinstatement.

According to Sri Upadhyay the judgement of the writ Court has been fully complied with and nothing further remains to be implemented. Learned Chief Standing Counsel has relied upon large number of decisions of the Apex Court and this Court in support of his argument that until and unless the Court while allowing the writ petition had also directed for award of back wages and consequential benefits, there can be no claim or justification for payment of back wages. Further according to him this is also the stand taken by the State as is apparent from the affidavit dated 03.03.2014 duly sworn by the Special Secretary (Home).

On the other hand learned counsel for the applicants submitted that once termination had been quashed all the terminated employees were entitled to full back wages and consequential benefits as the writ Court had not given any direction for reducing their back wages on the principle of no work no pay. It is also case of the applicants that writ Court had found that the termination enmass by the Government was illegal and once termination was held to be illegal, applicants would be entitled to all the benefits. It has also been submitted that the applicants and all other constables in any case would be entitled to their salary from the date of judgement of the writ Court. The Division Bench as also the Supreme Court had dismissed the intra Court appeal and the Special Leave Petition.

It may be an arguable case that applicants may not be entitled to back wages for the period when the orders for termination were in force but there can be no issue that applicants would not be entitled to the salary from the date of judgement of the writ Court. Thus, prima facie case of non compliance of the judgement of the writ Court is made out. Accordingly, the Principal Secretary (Home), U.P. Lucknow and the Director of General of Police, U.P. Lucknow need to be summoned. Since this matter is engaging attention of the Government for quite some time, learned Advocate General and learned Chief Standing Counsel have already appeared on a number of occasions and the stand taken by them has already come on record it is not necessary to issue formal notices to the present Principal Secretary (Home) and the Director General of Police.

Sri Anil Kumar Gupta, present Principal Secretary (Home) has already been arrayed as opposite party no.7. Upon oral request learned counsel for the applicant is permitted to implead Sri Anand Lal Banerjee, Director General of Police, U.P. Lucknow, as opposite party no.8 during the course of the day.

Sri Upadhyay, learned Chief Standing Counsel accepts the notices on their behalf and shall communicate them of this order.

List this case on 13th March, 2014.

On the said date the Principal Secretary (Home) and the Director General of Police, U.P. Lucknow would remain present before this Court.

A copy of this order may be provided to Sri Ramesh Kumar Upadhyay, learned Chief Standing Counsel, free of costs within 24 hours for necessary compliance."

At the very outset, learned counsel for the respondents Sri G.K. Singh has raised a preliminary objection with regard to the maintainability of this contempt appeal. In this respect, learned counsel for the respondents has drawn our attention to the report of Stamp Reporter dated 10th March, 2014, according to which this contempt appeal is not maintainable. Apart from this, learned counsel for the respondents has placed before us the following judgments of Hon'ble Supreme Court in support of his contention:-

Midnapore Peoples' Co-op. Bank Ltd. and others Vs. Chunilal Nanda and others (2006) 5 SCC 399.

Nand Lal Yadav v. Raja Ram and others (Contempt Appeal (Criminal) No. 1 of 2010).

S.M.A. Abdi, the Principal Secretary (Law) Government of Uttar Pradesh and another v. Private Secretaries Brotherhood and another 2009 (4) AWC 4026.

Dr. Lalji Singh & others v. Dr. Anil Kumar Chauhan (Contempt Appeal No. 6 of 2014).

Sri Ramesh Upadhyay, learned Chief Standing Counsel on the other hand has submitted that the appeal is maintainable in view of the law laid down by the Apex Court in case of R.N. Dey and others v. Bhagyabati Pramanik and others, (2000) 4 Supreme Court Cases 400. He has also placed reliance on the judgment rendered in Midnapore Peoples' Coop Bank Ltd and others Vs. Chunilal Nanda and others (2006)5 SCC 399, wherein the Apex Court has carved out an exception by holding that appeal is maintainable where such direction is incidental to or inextricably connected with the order punishing for contempt. Learned Chief Standing Counsel has drawn our attention to the earlier order of this Court passed in this appeal on 12.3.2014, which is reproduced below:-

"On the matter being taken up today, preliminary objection has been raised in regard to maintainability of appeal in question.

Sri. R.N. Singh, Senior Advocate has contended that as per settled law in the case of Midnapore Peoples' Coop Bank Ltd and others Vs. Chunilal Nanda and others (2006)5 SCC 399, appeal can be filed only when jurisdiction to punish for contempt has been exercised and only exception that has been carved out where such direction is incidental to or inextricably connected with the order punishing for contempt only then appeal under Section 19 of the Contempt of Courts Act, 1971 an encompass such a situation, and the case in hand is not at all falling under such an exception.

Sri V.C. Mishra, Senior Advocate/ Advocate General, assisted by Sri Ramesh Upadhya, Chief Standing Counsel on the other hand contended that case in hand falls within the exception that has been carved out by Supreme Court as here in spite of precise submission having been made qua entitlement, same has not been adverted to in its correct perspective and what has not been provided for in the judgment, in the threat of contempt proceeding same is being sought to be awarded, and ignoring the stand of State, opinion has been formed for awarding salary and Officers of State, for its implementation are being summoned in Court for framing of the charges whereas there is an application moved by the appellants for discharge taking stand that order stands complied with in its words and spirit. Summoning of incumbents in person is nothing but arm twisting device.

Specific query has been raised to both the counsels, as to whether, Hon'ble Apex Court on any subsequent occasion has clarified the situation, as to in what contingency, case in question would fall within the category of incidental to or inextricably connected with the order punishing for contempt. The answer has been in negative.

Issue requires consideration by this Court as to whether case in hand falls within the category of incidental to or inextricably connected with the order punishing for contempt.

In view of the same, it is necessary to answer this question, as such list this case for final hearing on 4.4.2014. Record of single judge be summoned and no further action be taken till that date."

Sri Upadhyay has further submitted that the impugned order clearly comes within the purview of the exception carved out by the Apex Court in Midnapore's case (supra) because a definite opinion has been formed by learned Single Judge that contempt of court has been committed by the State and the officers of the State have been summoned in the Court for framing of charges against them. Learned Chief Standing Counsel has also placed reliance on the following judgments in support of the his contention.

A.P. SRTC & another vs. B.S. David Paul; (2006) 2 SCC 282.

Sudhir Vasudeva vs. M. George Ravishekaran & others; 2014 STPL (Web) 70 SC.

Director of Education, Uttaranchal and others vs. Ved Prakash Joshi & others; (2005) 3 UPLBEC 2415.

Abdul Gani Bhat Vs. Chairman, Islamia College Governing Board and others; (2011) 12 SCC 736.

Rajasthan State Road Transport Corporation vs. Shyam Bihari Lal Gupta; (2005) 7 SCC 406.

Jhareswar Prasad Paul and another vs. Tarak Nath Ganguly and others; (2002) 5 SCC 352.

Harendra Maurya and 79 others vs. Shri R.M. Srivastava (Contempt No. 1782 of 2013).

State of Maharastra vs. Mahboob S. Allibhoy and others; 1996 (4) SCC 411.

Midnapore Peoples' Co-op. Bank Ltd. And others vs. Chuni Lal Nanda and others; (2006) 5 SCC 399.

The appellants have challenged the validity of the impugned order mainly on the ground that the contempt Court cannot traverse beyond the order or cannot test the correctness or otherwise of the order giving additional directions or delete any direction as it would amount to exercising review jurisdiction. Placing reliance on the law laid down by the Hon'ble Supreme Court in the case of Director of Education, Uttaranchal v. Ved Prakash Joshi (2005) 3 UPLBEC 2415, learned Chief Standing Counsel has vehemently argued that the judgment dated 8.12.2008, passed by the writ Court is totally silent on the issue whether the terminated Constables, who have been reinstated, are entitled for back wages or not. He has submitted that the contempt court is not entitled to decide this issue by reviewing the judgment of writ Court. He has drawn our attention to the following paragraphs of the impugned order, wherein the learned Single Judge has observed as under:

"......It is not an issue that all the terminated constables have been reinstated w.e.f. 27.5.2009 and they are receiving their salary ever since then. The only issue which remains to be considered is as to whether they would be entitled to uninterrupted service benefits from the date of entering into service and also with regard to their entitlement to payment of salary / back wages for the period they have remained under termination i.e. from the date of termination till the date of reinstatement.

Relying on the judgment rendered in Ved Prakash Joshi's case (supra) Sri Upadhyay has contended that if the writ Court is silent on the issue of payment of back wages to the reinstated employees, the contempt Court has no jurisdiction to decide this issue by reviewing the judgment of the writ Court.

In Ved Prakash Joshi's case (supra), the Hon'ble Supreme Court, while setting aside the order passed by Allahabad High Court in Civil Misc. Contempt Application No. 3797 of 1998 held as under:-

".......The Court exercising contempt jurisdiction cannot take upon itself power to decide the original proceedings in a manner not dealt with by the Court passing the judgment or order. Right or wrong the order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. While dealing with an application for contempt the Court cannot traverse beyond the order, non-compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible. In that view of the matter, the order of the High Court is set aside."

Learned Chief Standing Counsel has submitted that the appeal against the impugned order is maintainable in view of the law laid down by Supreme Court in case of R.N. Dey and others v. Bhagyabati Pramanik and others, (2000) 4 Supreme Court Cases 400, in which the Apex Court has held that when the court either suo motu or on a motion or a reference, decides to take action and initiate proceedings for contempt and if the order is passed not discharging the rule issued in contempt proceedings, it would be an order or decision in exercise of its jurisdiction to punish for contempt. Against such order appeal would be maintainable.

We have given our thoughtful consideration to various pleas advanced by learned counsel for the parties.

The present contempt appeal has arisen in the backdrop of the facts that services of about 20,000 Constables of Civil Police (including the appellants) were terminated en-mass in the year 2007 by a couple of Government Orders. Those Government Orders were challenged by way of large number of writ petitions, which were clubbed together and the writ Court vide order dated 8.12.2008 allowed the writ petitions and quashed the Government Orders, whereby the termination had been directed. The State Government preferred intra court appeals against the order of Single Judge, which were also dismissed by the Division Bench on 4.3.2009. The State Government filed Special Leave Petition before the Apex Court and under interim order of the Apex Court dated 25.5.2009, the terminated Constables were given appointment letters and were allowed to join their services on 27.5.2009. Subsequently, the Special Leave Petition got dismissed as withdrawn by the State on 3.3.2013. The effect of the dismissal of the Special Leave Petition as withdrawn was that the judgment of the writ Court stood affirmed. However, when the judgment of writ Court was not complied by the State in its letters and spirit, contempt proceedings were initiated before this Court by means of filing Civil Misc. Contempt Petition No. 1140 of 2009. In the aforesaid contempt petition, the learned Single Judge on 20.5.2009 after a detailed discussion of the matter, held as under:

"The Court is left with no option but to record its satisfaction that a prima facie case for willful disobedience and total non-compliance of the judgment of this Court is made out. The opposite parties no. 2 to 6 are directed to remain present before this Court on the next date which is being fixed as 27.5.2009 for framing of the charges.

At this stage on the request of the learned Advocate General one more opportunity is given to the opposite parties to make compliance of the judgment of this Court by the next date fixed failing which they shall appear before this Court. In case of compliance having been made and an affidavit to that effect being filed by the Principal Secretary, Department of Home, Government of U.P. their personal appearance would not be necessary.

List on 27.5.2009.

A copy of the order may be provided to Sri M.C. Chaturvedi, learned Chief Standing Counsel free of cost within 48 hours for necessary compliance and to the other parties on payment of usual charges within the same time."

The record shows that despite having ample time and opportunity, when the State did not comply the order dated 8.12.2008, passed in Civil Misc. Writ Petition No. 45645 of 2007, the learned Single Judge of this Court, finding that prima facie case of non compliance of judgment of the writ Court was made out, summoned the Principal Secretary Home, Government of U.P. Lucknow and Director General of Police, U.P. Lucknow in Court on 13.3.2014 personally vide impugned order.

As the respondents have raised a preliminary objection on the maintainability of this contempt appeal, the issue regarding the maintainability of the appeal is to be decided at the first instance.

Section 19 of the Contempt of Courts Act, 1971 provides that an appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt. Section 19 of the Contempt of Courts Act, 1971 read thus:-

"19. Appeals.--(1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt--

(a) where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court;

(b) where the order or decision is that of a Bench, to the Supreme Court:"

There is a plethora of judgments of Hon'ble Supreme Court on the law regarding maintainability of contempt appeal.

1. In D.N. Taneja v. Bhajan Lal (1988) 3 SCC 26, the three judge bench of Hon'ble Supreme Court has held that "an appeal will lie under Section 19(1) of the Act only when the High Court makes an order or decision in exercise of its jurisdiction to punish for contempt. The High Court exercises its jurisdiction or power as conferred on it by Article 215 of the Constitution when it imposes a punishment for contempt. When the High Court does not impose any punishment on the alleged contemnor, it does not exercise its jurisdiction or power to punish for contempt under Article 215."

2. In State of Maharashtra vs. Mahboob S. Alibhoy (1996) 4 SCC 411, the Hon'ble Apex Court has held that "words 'any order' must be read with 'decision' so as to exclude any interlocutory order of the High Court from scope of appeal. Unless by the order High Court imposes punishment in exercise of its jurisdiction to punish for contempt, no appeal will lie against it."

3. In Purshotam Dass Goel v. B.S. Dhillon (1978) 2 SCC 370, the Hon'ble Apex Court has held that "the order or decision appealed against under section 19 must be such that it decides some bone of contention raised before the High Court affecting the right of the party aggrieved. Mere initiation of a proceeding for contempt by the issuance of the notice on the prima facie view that the case is a fit one for drawing up the proceeding, does not decide any question."

4. In Parents Assn. of Students' v. M.A. Khan (2009) 2 SCC 641, it has been held by Hon'ble Apex Court that special appeal from interim order passed by Single Judge in exercise of contempt jurisdiction if, in view of provisions of Section 19 of the Contempt of Courts Act, is not maintainable. (Allahabad High Court Rules, 1952, Ch. VIII Section B).

5. In S.M.A. Abdi's case (supra), this Court has held as follows:-

"It is not to be emphasised that right of appeal is a creature of statute and unless the law specifically provides for filing the appeal, that cannot be permitted. Any order or decision as referred in Section 19 of the Act cannot be read independently from an order of punishing for contempt."

6. In Smt. Sudha Shukla v. Ausan and others, Contempt Appeal No. 7 of 2009, decided on 26.05.2009, this Court has observed as under:-

"....unless any adverse order having immediate effect causing injury is passed, that cannot be appealed either by filing contempt appeal or even by filing Special Appeal if it is not so provided."

7. In Tamilnad Mercantile Bank Shareholders Welfare Association's case (supra), the Apex Court has approved the judgments of the Calcutta High Court rendered in the case of Ashoke Kumar Rai v. Ashoke Arora and another (96 CWN 278), wherein it has been held as under:-

"The right of appeal will be available under Sub- section (1) of Section 19 only against any decision or order of a High Court passed in the exercise of its jurisdiction to punish for contempt. In this connection, it is pertinent to refer to the provision of Article 215 of the Constitution which provides that every High Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself. Article 215 confers on the High Court the power to punish for contempt of itself. In other words, the High Court derives its jurisdiction to punish for contempt from Article 215 of the Constitution. As has been noticed earlier, an appeal will lie under Section 19(1) of the Act only when the High Court makes an order or decision in exercise of its jurisdiction to punish for contempt. It is submitted on behalf of the respondent and, in our opinion rightly, that the High Court exercises its jurisdiction or power as conferred on it by Article 215 of the Constitution when it imposes a punishment for contempt. When the High Court does not impose any punishment on the alleged contemner, the High Court does not exercise its jurisdiction or power to punish for contempt. The jurisdiction of the High Court is to punish. When no punishment is imposed by the High Court, it is difficult to say that the High Court has exercised its jurisdiction or power as conferred on it by Article 215 of the Constitution....."

8. In Midnapore's case (supra) Hon'ble Supreme Court, after a detailed discussion of its several earlier judgments has summed up the matter with the following observations:-

"The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized thus:-

"I. An appeal under Section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.

II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.

III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.

IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of "jurisdiction to punish for contempt" and, therefore, not appealable under Section 19 of the CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under Section 19 of the Act, can also encompass the incidental or inextricably connected directions.

V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases)."

In wake of the several pronouncements of Hon'ble Supreme Court and also of this Court, cited above and considering the facts and circumstances of the present case, in our considered opinion, it cannot be said that by the order impugned, any punishment has been imposed on the appellants.

By the impugned order, the appellants have merely been summoned in the Court. The impugned order does not even say anything that on the date fixed, charges would be framed against them. Even if assuming that their personal appearance was required for framing of charges against them in the contempt proceeding, but there is absolutely no indication that by the impugned order, the learned Single Judge has imposed any punishment on the appellants for contempt. Hence, in view of the well settled legal position as discussed above, we have no doubt in holding that the impugned order is an interlocutory order against which an appeal under Section 19 of the Contempt of Courts Act, 1971 is not maintainable. Therefore, the present appeal is liable to be dismissed as not maintainable. However, the appellants are not remediless and they are at liberty to avail any other remedy available to them under law, if so advised, in wake of the law laid down by the Apex Court in Midnapore's case (supra), wherein it has been held that if the High Court, in a contempt proceeding, decides an issue or makes any direction, relating to the merits of the dispute between the parties, the aggrieved person is not without remedy and he can challenge it by means of intra court appeal if the order is of Single Judge and by seeking special leave to appeal under Article 136 of the Constitution of India in other cases, but not by way of filing an appeal under Section 19 of the Contempt of Courts Act.

Accordingly, the appeal is dismissed.

No order as to costs.

Order Date :- 9.9.2015