Rajendra Kumar Pandey(Presently ... vs Shesh Dhar Pathak And 3 Others
2022 Latest Caselaw 1573 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2
 

 
Case :- SPECIAL APPEAL No. - 171 of 2022
 

 
Appellant :- Rajendra Kumar Pandey(Presently Posted As D.I.Of School)
 
Respondent :- Shesh Dhar Pathak And 3 Others
 
Counsel for Appellant :- Amrendra Nath Tripathi
 
Counsel for Respondent :- Girish Chandra Verma,Girish Chandra Verma
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Subhash Vidyarthi,J.

By instituting proceedings of the instant Intra-Court appeal under Chapter VIII Rule 5 of the Rules of the Court, appellant has laid a challenge to an order dated 06.12.2021 passed by the learned Single Judge in Contempt Petition No.210 of 2019 whereby charge against the appellant has been framed under the Contempt of Courts Act.

Heard Shri Amrendra Nath Tripathi, learned counsel representing the appellant and Shri Girish Chandra Verma, learned counsel representing the respondent nos.1 to 3. We have also perused the record available before us on this special appeal.

Submission of the learned counsel representing the appellant is that the learned Single Judge while passing the order under appeal has failed to appreciate that there was no willful and deliberate disobedience of the judgment of the writ Court while the appellant passed the compliance order dated 17.06.2019. It has further been argued that the learned Single Judge while passing the order under under appeal has not considered the relevant facts that the institution was taken on grant-in-aid list in the year 1964 and all the posts were already filled, that writ petitioners were appointed against surplus posts, hence they were not entitled for payment of salary, that the order dated 17.06.2019 has never been assailed by the respondent nos.1 to 3. It has also been argued that the order under appeal has been passed by the learned Single Judge on the presumption as if the appointments of respondent nos.1 to 3 were approved as per law.

It has, thus, been argued that the order passed by the learned Contempt Judge, dated 06.12.2021 is vitiated and is liable to be set aside.

Shri G. C. Verma, learned counsel representing the respondent nos.1 to 3 has raised a preliminary objection as to the maintainability of this special appeal in terms of the provisions contained in under Chapter VIII Rule 5 of the Rules of the Court by stating that any order passed in contempt proceedings unless and until decides an issue, is not appealable before the Division Bench of this Court in an Intra-Court appeal.

In rejoinder, learned counsel representing the appellant has relied upon the judgment of Hon'ble Supreme Court in the case of Midnapore Peoples Corporation Bank Ltd. and others vs. Chunilal Nanda and others, reported in (2006) 5 SCC 399 and has submitted that as per Point No. V as summarized by Hon'ble Supreme Court in para 11 of the judgment in Midnapore Peoples Corporation Bank Ltd. and others (supra) if the learned Single Judge, even while exercising the contempt jurisdiction under Contempt of Courts Act, 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 such an order will, thus, be open to challenge in an intra-court appeal or by seeking special leave to appeal under Article 136 of the Constitution of India. His submission is that by commenting upon the compliance order passed by the appellant dated 17.06.2019 learned Contempt Judge while passing the impugned order framing the charges has touched upon the merit of the appointments of the respondent nos.1 to 3 and hence this appeal is maintainable.

We have given our serious consideration to the rival submissions made by the learned counsel representing the respective parties. Before dwelling upon the arguments made by the learned counsel for the appellant, we may notice certain facts.

Respondent nos.1 to 3 (writ petitioners) earlier filed Writ Petition No.3168 (S/S) of 2012 before this Court with the assertions that they were duly appointed on 25.11.2007 and since then they have been discharging functions of the respective posts, however, they were not paid their salary. Accordingly, they prayed that they were entitled for payment of salary. The said writ petition no.3168 (S/S) of 2012 was finally disposed of by a learned Single Judge of this Court by means of the judgment and order dated 31.01.2018 whereby liberty was given to the writ petitioners/respondent nos.1 to 3 to submit a fresh representation to the District Inspector of Schools ( the post which is being held by the appellant) within 15 days and thereafter the District Inspector of Schools was directed to consider and decide the representation.

In compliance of the said order dated 31.01.2018 passed by the learned Single Judge in Writ Petition No.3168 (S/S) of 2012 representation was decided by the District Inspector of Schools by means of an order dated 13.06.2018 whereby the claim of the writ petitioners for payment of salary was rejected on the ground that their appointment was not as per the procedure prescribed by the Rules known as "mRrj izns'k ek/;fed laLd`r f'k{kk ifj"kn ¼laLFkkvksa ds iz/kkuksa] v/;kidksa ,oa laLFkkvksa ds vU; deZpkfj;ksa dh fu;qfDr rFkk lsok 'krZ½ fofu;ekoyh] 2009". Thus, the only reason indicated in the said order dated 13.06.2018 was that the appointment of the writ petitioners was not made in terms of the aforesaid Regulations, 2009.

The aforesaid order dated 13.06.2018 passed by the District Inspector of Schools came to be challenged by the writ petitioners by filing Writ Petition No.23985 (S/S) of 2018. The said writ petition was finally allowed by the learned Single Judge by means of the order dated 29.08.2018 whereby the order dated 13.06.2018 was set aside and a further direction was issued to the District Inspector of Schools to consider and pass appropriate reasoned and speaking order in accordance with law in respect of payment of salary to the writ petitioners. The said order dated 29.08.2018 further directed that consideration of the claim of the writ petitioners shall be made in the light of the observations made in the said order itself.

It is only after instituting the aforesaid contempt petition no.210 of 2019 that the appellant passed an order on 17.06.2019. The said order dated 17.06.2019 is on record at page 69 of this special appeal. The appellant while passing the said order only considered the report said to have been sent by the Principal of the Institution and has opined that the documents related to appointments of the writ petitioners were not available in the institution and that the writ petitioners have not even been attending the institution.

When this purported compliance order dated 17.06.2019 was placed before the learned Contempt Judge, he took note of the contents of the said order and proceeded to frame charge against the appellant.

The only observation made by the learned Contempt Judge while passing the order under appeal herein is that the reason indicated in the order dated 17.06.2019 already stood repelled by the writ court in its order dated 29.08.2018.

There are only two reasons indicated in the order dated 17.06.2019 and these are (i) that no documents relating to appointment of the writ petitioners are available in the institution and (ii) that the attendance of the writ petitioners was not found in order. When we peruse the order dated 29.08.2018, what we find is that the learned Single Judge has given a categorical finding about non-availability of the documents relating to appointment of the writ petitioners and has thus did not agree with the submissions made by the respondents in the said writ petition.

Learned Single Judge while passing the order under appeal has only referred to the order dated 29.08.2018 passed by the writ Court in Writ Petition No.23985 (S/S) of 2018 and has stated that it was not open to the appellant to have sat over the said findings.

It would be appropriate to quote para 11 of the judgment of Hon'ble Supreme Court in the case of Midnapore Peoples Corporation Bank Ltd. and others (supra) which is extracted herein below:

" 11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarised 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 Contempt of Courts 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 Contempt of Courts 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)."

Reliance has also been placed by the learned counsel for the appellant on a judgment rendered by this Court on 06.04.2022 in Special Appeal No.135 of 2022 (Amit Mohan Prasad and another vs. Naresh Babu Tewari and others). In the said case the Court had given a finding that the learned Contempt Judge while passing the order which was under challenge in special appeal had given a finding that the despite following the recommendation of some Committee, the State Government had provided to the employee concerned a particular pay scale and thus the learned Contempt Judge had entered into the merits of the Government Order whereby the recommendation made by the Committee was considered and a decision was taken to pay the employee concerned a particular scale of pay.

In the instant case, learned Contempt Judge while passing the order under appeal does not appear to have touched the merits of any issue.

Reference may be had to a Division Bench judgment of this Court dated 13.07.2022 rendered in Special Appeal No.262 of 2020 (Roop Singh vs. Shri Vinay Kumar Jauhari and others). In the said judgment, it has been held that the order passed by the learned Contempt Judge was only procedural in nature and cannot, in any manner, be said to have touched the merit of the controversy or dispute between the parties so that the order under appeal in the said case could be deemed to have been passed in exercise of power conferred under Article 226 of the Constitution of India. In the instant case as well, the order dated 06.12.2021 passed by the Contempt Judge is only to frame the charges without touching upon the merit of the dispute between the parties.

When we consider the submissions of the learned counsel for the appellant in the light of Point No. V of the summary as given by the Hon'ble Supreme Court in para 11 of Midnapore Peoples Corporation Bank Ltd. and others (supra), what we find is that the learned Contempt Judge while passing the order dated 06.12.2021 has not touched upon the merit of the appointment of the writ petitioners; rather the learned Contempt Judge has only stated while framing the charges that the appellant has attempted to sit in appeal over the judgment and order passed by the writ court.

In our considered opinion, thus, order dated 06.12.2021 passed by the learned Contempt Judge which is under appeal herein cannot be said to have decided any issue. It also cannot be said that the learned Contempt Judge has issued any direction relating to merits of the dispute between the parties. Learned Contempt Judge has rather only passed the order framing the charges against the appellant in exercise of his contempt jurisdiction.

An attempt has been made by the learned counsel for the appellant while arguing this special appeal to draw the attention of the Court to the alleged illegality in the appointment of the writ petitioners. Such a course, in our considered opinion is not available to the appellant either in the contempt proceedings or in these proceedings which have arisen out of an order passed in the contempt proceedings. If in any manner the appellant or the State authorities were aggrieved by any finding recorded or direction made in the judgment and order dated 29.08.2018 passed by the writ Court it was always open to them to challenge the same either by seeking its review or by challenging the same before the other higher forum/court which may be available to them under law.

For the reasons given above, we are convinced that the instant special appeal filed under Chapter VIII Rule 5 of the Rules of the Court is not maintainable which is, thus, hereby dismissed.

No order as to costs.

Order Date :- 27.4.2022

akhilesh/