Arvind Kumar, Infra And ... vs Shrawan Kumar And Others
2022 Latest Caselaw 19841 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2
 

 
Case :- SPECIAL APPEAL No. - 485 of 2022
 

 
Appellant :- Arvind Kumar, Infra And Industrial Development Comm. And Addl. Chief Secy. Indus. Deve. U.P. Lko.
 
Respondent :- Shrawan Kumar And Others
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Sachin Kumar Pandey
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Saurabh Srivastava,J.

Heard learned State counsel representing the appellant and Sri Sachin Kumar Pandey, learned counsel for respondent no.1 and perused the records available before us on this special appeal.

By invoking our jurisdiction under Chapter VIII Rule 5 of the Rules of the Court, this special appeal has been filed challenging the correctness of an order dated 18.11.2022 passed by learned Contempt Judge in Contempt Application (Civil) No.1996 of 2020 whereby the compliance affidavit and the application filed by the appellant seeking discharge of contempt notices have been rejected.

Submission of learned counsel for appellant is that learned Contempt Judge while passing the order dated 18.11.2022, in fact, has decided the issue on merits between the parties by rejecting the application seeking discharge of contempt notices which is impermissible in contempt jurisdiction in view of the law laid down by Hon'ble Supreme Court in the case of Midnapore Peoples' Cooperative Bank Ltd and others vs. Chunilal Nanda and others, reported in (2006) 5 SCC 399. It has further been argued by learned counsel for appellant citing another judgment of Hon'ble Supreme Court in the case of R.N.Dey and others vs. Bhagyabati Pramanik and others, reported in (2000) 4 SCC 400 that an appeal would lie against an order passed by learned Contempt Judge if the order is passed not discharging the contempt notices issued in the contempt proceedings. He has further argued that learned Contempt Judge has completely erred in law in rejecting the application seeking discharge of contempt notices ignoring that the order passed by the Division Bench of this Court, dated 05.02.2020 in Special Appeal Defective No.586 of 2019 was complied with keeping in view the subsequent resolution of the Board of Directors of the Institute of Tool Room Training (an Institute working under the State Government's control and superintendence).

Learned counsel for respondent no.1 has opposed the very maintainability of this special appeal for which he has also relied upon the law laid down in the case of Midnapore (supra).

Considered the respective submissions made by learned counsel for parties.

Respondent no.1-petitioner instituted the proceedings of Writ Petition No.34236 (S/S) of 2018 with the prayer primarily to pay him salary in tune with the recommendations made by 6th Pay Commission w.e.f. 01.01.2006.

We may at this juncture itself notice that 6th Pay Commission's recommendations were made for all the government employees, however, respondent no.1-petitioner served an autonomous institution and was not thus covered by the recommendations made by the 6th Pay Commission. It is also to be noticed that the State Government took certain decisions for implementing the recommendations made by the 6th Pay Commission in respect of the autonomous bodies and its undertakings/enterprises as well on certain conditions. In view of the said decision of the State Government, the Board of Directors of the Institute appears to have taken some decision in its 61st meeting held on 06.06.2018 wherein the Board of Directors agreed in principal to make payment of arrears of salary revision w.e.f. 01.01.2006 and accordingly referred the matter to the State Government.

The basic premise of the writ petition filed by the respondent no.1-petitioner was the aforesaid decision of the Board of Directors of the Institute taken in its 61st meeting held on 06.06.2018, however, the said writ petition was dismissed by learned Single Judge by means of the judgment and order dated 17.10.2019 passed in Writ Petition No.34236 (S/S) of 2018. The said judgment of learned Single Judge was appealed against by the respondent no.1-petitioner by filing Special Appeal Defective No.586 of 2019, which was partly allowed by the Division Bench of this Court by means of the order dated 05.02.2020 and the judgment dismissing the writ petition by learned Single Judge dated 17.10.2019 was modified. By the said order dated 05.02.2020, the Division Bench noticed the decision of the Board of Directors, dated 06.06.2018 passed in its 61st meeting and accordingly opined that the respondent no.1-petitioner had a fresh cause of action in respect of payment of arrears of salary in the light of 6th Pay Commission recommendations, w.e.f. 01.01.2006. The Division Bench, thus, directed the State Government to take decision on the recommendations made by the Board of Directors in its 61st meeting held on 06.06.2018 for grant of the benefits on the basis of 6th Pay Commission recommendation w.e.f. 01.01.2006.

Though, the Division Bench while passing the judgment dated 05.02.2020 did not specify any time period within which the State Government was required to take decision, however, in our opinion, in some reasonable time, which may be three months from the date of order, the decision ought to have been taken by the State Government. However, no decision was taken by the State Government in compliance of the order passed by the Division Bench on 05.02.2020 before 12.09.2022 when for the first time ensuring compliance of the order dated 05.02.2020 the decision by the State Government was taken. The decision by the State Government was thus taken after a period of about 31 months from the date the Division Bench passed the order on 05.02.2020.

In the Contempt Petition a stand has been taken by the appellant that after passing of the order dated 05.02.2020, the Board of Directors of the Institute took another decision on 28.12.2020 in its 62nd meeting whereby the earlier recommendation made by the Board of Directors in its 61st meeting on 06.06.2018 was rescinded and accordingly based on the decision of the Board of Directors held in its 62nd meeting, the appellant took the decision on 12.09.2022.

Submission, thus, is that the State Government has complied with the order passed by the Division Bench, dated 05.02.2020 by passing the order dated 12.09.2022.

Learned Single Judge has considered the aforesaid submissions made on behalf of the appellant while passing the order dated 18.11.2022, however, it has been opined therein that the direction by the Division Bench in its order dated 05.02.2020 was to the State Government to take decision in the light of the recommendations made by the Board of Directors vide its decision taken in 61st meeting and that after the 61st meeting, the order passed by the Division Bench has neither been modified nor has been challenged before any higher forum and thus the order of the Division Bench, dated 05.02.2020 remains uncomplied with.

As to whether by taking the decision dated 12.09.2022, the appellant has disobeyed the order dated 05.02.2020 passed by the Division Bench of this Court or has committed any contempt, is the subject matter of the contempt petition pending before learned Contempt Judge. If any finding on the issue as to whether in the facts of a particular case the order passed by the writ court has been disobeyed, has been recorded by learned Contempt Judge, in our considered opinion, such finding will be a finding in the process of adjudicating the contempt issue alone. Such a finding in any way will not assume the character of giving a finding on the merit of dispute between the parties. The order passed by learned Contempt Judge in giving a finding in the process of determining the contempt may or may not be correct, however, such an order will not be appealable in an intra-court appeal under Chapter VIII Rule 5 of the Rules of the Court, as has been clearly held by Hon'ble Supreme Court in the case of Midnapore (supra). Para 11 of the said judgment is extracted hereinbelow:-

"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 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)".

From a perusal of conclusion (v) in para 11 of Midnapore's case as extracted above, it is clear that any intra-court appeal will be maintainable against an order passed by learned Contempt Judge in contempt proceedings only if such an order decides any issue on merit between the parties or learned Contempt Judge issues any direction.

So far as the judgment cited by learned State counsel in the case of R.N.Dey and others (supra) is concerned, the said judgment does not lay down any such legal principle where any order passed by learned Contempt Judge in the process of determining the contempt is appealable in an intra-court appeal. Para 8 of the said judgment as relied upon by learned State counsel appearing for the appellant does not provide for filing of any intra-court appeal against such an order, rather issue in this case was availability of an appeal under Section 19 of the Contempt of Courts Act.

When we peruse the order dated 18.11.2022 passed by learned Contempt Judge in this case, we do not find that learned Contempt Judge has issued any direction or has decided any dispute on merit between the parties. Learned Contempt Judge has rejected the compliance affidavit and the prayer for discharge of contempt notices by only observing that by passing the order dated 12.09.2022, the appellant has not complied with the order passed by the Division Bench of this Court on 05.02.2020. Such an order, as already observed above, does not decide any dispute between the parties; neither does it contain any direction to the appellant. It is rather only an order passed by learned Contempt Judge in the process of determining the contempt and accordingly this special appeal would not be maintainable.

For the reasons aforesaid, we are satisfied that this special appeal filed under Chapter VIII Rule 5 of the Rules of the Court is not maintainable, which is hereby dismissed.

Order Date :- 5.12.2022

Renu/-