Allahabad High Court
Karnesh Kumar Singh And 8 Others vs Sri Rajesh Kumar Arya, Assistant ... on 17 March, 2021
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 2
Case :- CONTEMPT APPLICATION (CIVIL) No. - 4476 of 2020
Applicant :- Karnesh Kumar Singh and others
Opposite Party :- Sri Rajesh Kumar Arya, Assistant Director of Education and others
Counsel for Applicant :- Rajesh Kumar Singh, Devendra Pratap Singh
Hon'ble Suneet Kumar, J.
1. Affidavit of compliance/ short counter affidavit, filed by opposite party no. 1, is taken on record.
2. Heard learned counsel for the applicants and learned Standing Counsel appearing for the opposite parties.
3. The applicants, nine in numbers, have filed this Contempt Application under Section 12 of the Contempt of Courts Act, 1971 (hereinafter referred to as "Act, 1971") complaining non compliance of the order dated 27.08.2020 passed by this Court in Writ Petition bearing (Writ-A) No. 10847 of 2019. The said writ petition was instituted by the applicants, being petitioners therein, challenging the order dated 04.12.2018 passed by Assistant Director of Education (Basic), Azamgarh Region, Azamgarh, stopping payment of salary to the applicants.
4. The aforesaid writ petition came to be decided by this Court vide order dated 27.08.2020 setting aside the order dated 04.12.2018 impugned therein, directing payment of salary to the petitioners within a period of 45 days from the date of production of a copy of the order. The operative part of the order reads thus:
" ... the order dated 4.12.2018 deserves to be set aside and is, accordingly, set aside with a direction that the salary of the petitioners, as stopped in terms of the order dated 4.12.2018, shall be paid to the petitioners within a period of 45 days from the date of production of a copy of the order downloaded from the official website of this Court, which shall be treated to be a certified copy of this order.
Petition is allowed in terms of the said order."
5. Copy of the aforesaid order, as per pleading made in paragraph-24 of the affidavit filed in support of the present contempt petition, was served upon opposite parties vide representation dated 01.09.2020 sent through the registered post on the same date. Since no action was taken in compliance of the writ court order, reminder was sent on 15.10.2020, which also remained unheeded, as pleaded in paragraph-25, 26 of the affidavit filed in support of the present contempt petition.
6. Faced with non compliance of the writ court order dated 27.08.2020, the present contempt petition came to be filed by the applicants. This Court, on 18.11.2020 passed the following order:
"Issue notice to the respondent(s) returnable on 14th December, 2020.
Meanwhile, if the Officer concerned purges the contempt, he may do so and report to the Court, failing which, he may file his reply."
7. In response, compliance affidavit was filed by the contemnor annexing therewith copy of the order dated 05.12.2020 passed by him purportedly in compliance of the writ court order. The relevant part of the order is extracted:
^^ek0 emPp U;k;ky; bykgkckn esa ;ksftr ;kfpdk la[;k&[email protected] d.ksZ'k dqekj flag ,oa vU; cuke m0iz0 ljdkj o vU; esa ikfjr ek0 mPp U;k;ky; ds vkns'k fnukad 27-08-2020 ds vuqikyu esa Jh ukFk ckck m0ek0 fo|ky; jlM+k] cfy;k ds layXu izkFkfed ikB'kkyk jlM+k] cfy;k esa dk;Zjr rFkkdfFkr f'k{kd Jh d.ksZ'k dqekj flag] Kkuorh nsoh] fojsUnz flag] misUnz flag] vfHkeU;q ;kno] m"kk ;kno] ';ke ukjk;.k ;kno] laxhrk flag ,oa jkts'k dqekj dk jktsUnz flag f'kdk;rdrkZ ds f'kdk;rh i= fnukad 11&04&2018 ds vk/kkj ij osru Hkqxrku jksds tkus ds dkj.k ;kphx.k }kjk ek0 mPp U;k;ky; esa mDr ;kfpdk ;ksftr dh x;h ftlds dze esa osru Hkqxrku gsrq ftyk csfld f'k{kk vf/kdkjh cfy;k ,oa izcU/[email protected] iz/kkuk?;kid] Jh ukFk ckck m0ek0 fo|ky; jlM+k] cfy;k ds layXu izkFkfed ikB'kkyk jlM+k] cfy;k }kjk miyC/k djk;s x;s vfHkys[kksa ds ijh{k.kksijkUr Jh d.ksZ'k dqekj flag] Kkuorh nsoh] fojsUnz flag] misUnz flag] vfHkeU;q ;kno] m"kk ;kno] ';ke ukjk;.k ;kno] laxhrk flag ,oa jkts'k dqekj] l0v0 dk osru Hkqxrku djuk lehphu izrhr ugha gks jgk gSA ------- Jh d.ksZ'k dqekj flag] Kkuorh nsoh] fojsUnz flag] misUnz flag] vfHkeU;q ;kno] m"kk ;kno] ';ke ukjk;.k ;kno] laxhrk flag ,oa jkts'k dqekj] lgk;d v/;kidksa dk izdj.k cyghu gksus ds dkj.k fujLr fd;k tkrk gSA^^
8. The matter again came to be considered on 17.02.2021, when this Court, finding the aforesaid order passed by the contemnor in utter violation of the writ court order amounting to contempt of court, framed charge against the contemnor by passing following order:
"Affidavit of compliance filed on behalf of opposite party no.1 is taken on record.
Admittedly the writ Court order has not been complied.
The writ Court vide order dated 27.8.2020 allowed the petition being Writ-A No. 10847 of 2019. Operative portion of the order reads thus:
".........accordingly, set aside with a direction that the salary of the petitioners, as stopped in terms of the order dated 4.12.2018, shall be paid to the petitioners within a period of 45 days from the date of production of a copy of the order downloaded from the official website of this Court, which shall be treated to be a certified copy of this order.
Petition is allowed in terms of the said order."
It is submitteed that a fresh order dated 5.12.2020 was passed by the opposite party denying salary to the applicants.
Be that as it may, the direction of the Court to pay the salary, stopped in terms of order dated 4.12.2018, within 45 days, has not been complied.
Notice for proceedings under the Contempt of Courts Act, 1971 (for short the 'Act') was served upon contemnor.
Having considered the rival submissions and on perusal of affidavit, this Court, prima facie, is of the opinion that the opposite party have deliberately and wilfully flouted the writ court's order dated 27.8.2020. Accordingly, following charge is framed against the opposite parties:
"You Shri Rajesh Kumar Arya, Assistant Director of Education (Basic), Azamgarh Region, Azamgarh (opposite party no.1) show cause within three weeks why you should not be tried and punished under Section 10/12 of the Contempt of Courts Act, 1971 for deliberate and wilful violation of the order dated 27.8.2020 passed in Writ Petition (Writ-A) No. 10847 of 2019.
Opposite party no. 1 to file response/defence along with other evidence on which he seeks to rely upon. The copy of the order shall be handed over to the opposite party, who shall submit his reply on or before the next date fixed.
List on 17 March 2021.
On the next date, opposite party shall remain personally present."
9. Today, when the matter was taken up, a second affidavit of compliance/ short counter affidavit has been filed on behalf of the contemnor annexing therewith the order dated 16.03.2021, passed by the contemnor, whereby, the earlier dated 05.12.2018, has been recalled submitting that the said order was passed due to inadvertent mistake. The relevant averments made in this regard in paragraph 3-4 of the affidavit reads as under:
"due to inadvertent mistake an order dated 5.12.2020 was passed by the deponent deciding the petitioner's claim of salary ... later on ... an order dated 16.3.2021 has been passed, whereby the said orders have been recalled."
10. On specific query, neither the learned counsel appearing for the contemnor nor the contemnor, present in person, could reply as to how an order running in two and half page could have been passed due to inadvertent mistake. It could not also be explained that against the clear direction for payment of salary to the petitioners by the writ court, what remained thereafter to be decided by the contemnor by applying his mind.
11. Even today, it is not the case of the contemnor that the payment of salary, as directed by this Court, has been made to the applicants, rather, it is stated that the same shall be done within shortest period.
12. On specific query made by this Court, learned counsel appearing for the conmtemnor could give no reply as to why the writ court order was not complied as soon as it was served upon the authorities concerned. He also could not reply nor explain under whose authority the order dated 05.12.2020 was passed. He also could not furnish any plausible reason or explanation for non compliance of the writ court order even till today, through four weeks have passed since framing of charge.
13. The approach of the contemnor in passing the order dated 05.12.2020, tantamounts to overreach the authority of the court of law, sitting in appeal, and thereafter, taking a decision whether the writ Court order is to be given effect or not. The approach and conduct of the contemnor is strange and extreme derogatory to the authority of the court of law. The adamant attitude of the contemnor is also vivid from the fact that in the entire affidavit he has not sought exoneration from the proceedings initiated against him under Act, 1971, but has only sought exemption from personal appearance in paragraph-5 of the affidavit of date. He has further tried to justify the delay in compliance of the writ court order stating it to be "procedural" in para-6 of the affidavit, which clearly exposes the approach of the contemnor that in his wisdom the procedure to be adopted by him is on a higher pedestal than the binding effect of the orders passed by the court of law.
14. It is not being disputed that the writ court order was served on the contemnor, but instead of complying the same, the contemnor passed the order dated 05.12.2020. The order passed by the contemnor tantamounts to sitting in appeal and overreaching the authority of this Court. The order dated 05.12.2020 categorically denied the applicants the payment of salary directed to be paid by writ court vide order dated 27.08.2020. The conduct of the contemnor tantamounts to rewriting the judgment. It is not denied that the order of the writ court was not assailed in appeal, therefore, the order attained finality. The contemnor admits of passing of the order dated 05.12.2020 which is in teeth of the writ court order. The subsequent order dated 16.03.2021 passed by the contemnor recalling the earlier order and pursuant thereof the subordinate educational officers, namely, Basic Shiksha Adhikari, Ballia and Finance and Accounts Officer in the Office Basic Shiksha Adhikari, Ballia have passed orders of the same date directing release of the salary. However, the salary till date has not been released nor credited in the accounts of the petitioners. Though the contemnor had four weeks to ensure compliance, but the orders have been passed belatedly one day before the matter is listed. The approach of the contemnor clearly indicates scant respect for Court of law and tantamounts to interference with the administration of justice. The conduct of the contemnor tantamounts to disobedience which is wilful, deliberate and intentional. The overall conduct of the contemnor by passing the earlier order, thereafter, recalling the said order and not ensuring compliance of the order by making payment to petitioners is an act done intentionally with specific intention to fail to do something the court required to be done. Disobedience is not a result of some compelling circumstances under which it was not possible to comply the order.
15. Having heard the learned counsel for the contemnor and on perusal of the affidavit filed in defence of the charge, I am of the opinion that the contemnor has flouted the writ court order by passing an order which defied the mandate of the writ court order which attained finality. It is not the case of the contemnor that the writ court order is ambiguous and beyond comprehension or it is open to two interpretation. The writ court categorically held that the applicants would be entitled to salary, whereas, the contemnor passed an order contrary thereto denying them salary.
16. Recall of the order dated 05.12.2020 passed by the contemnor would have no bearing on the contempt proceedings initiated against the contemnor as the contempt of court is alleged to have been committed by the contemnor on the date he passed order negating and refuting to comply the writ court order.
17. In absence of any reasonable and sustainable response/defence taken or evidence produced by the contemnor despite time having been given to him, the charge levelled against Shri Rajesh Kumar Arya, Assistant Director of Education (Basic), Azamgarh Region, Azamgarh, stands proved, accordingly, held guilty of contempt of court for wilfully and deliberately flouting this Court's order dated 27.08.2020 passed in Writ Petition (Writ-A) No. 10847 of 2019, punishable under Section 12 of the Act, 1971.
18. Learned counsel for the contemnor to argue on the issue of quantum of sentence.
19. As prayed by him, list on 09.04.2021.
20. Since the contemnor is present in person, no notice need be issued. He shall remain present on the next date.
Order Date :- 17.3.2021
P. Sri.
