Allahabad High Court
Dr. Balkar Singh Managing ... vs Kamlesh Kumar And Another on 24 August, 2023
Bench: Attau Rahman Masoodi, Om Prakash Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:56480-DB
Court No. - 1
Case :- SPECIAL APPEAL No. - 417 of 2023
Appellant :- Dr. Balkar Singh Managing Director U.P. Jal Nigam Rural , Lko. And Another
Respondent :- Kamlesh Kumar And Another
Counsel for Appellant :- Ratnesh Chandra,Samir Om
Counsel for Respondent :- Arpit Chaudhary
Hon'ble Attau Rahman Masoodi,J.
Hon'ble Om Prakash Shukla,J.
1. Heard Shri Ratnesh Chandra, learned counsel for the appellants and Shri Arpit Chaudhary, learned counsel for respondents.
2. This intra-Court appeal filed under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 has arisen out of an order passed by the contempt Court in Contempt Application (Civil) No.836 of 2023 on 03.08.2023.
3. Learned counsel for the appellants has argued that in view of the judgments of the Hon'ble Apex Court in the cases of Midnapore Peoples' Coop. Bank Ltd and others vs. Chunilal Nanda and others: (2006) 5 SCC 399 and in J.S. Parihar vs. Ganpat Duggar and Others: (1996) 6 SCC 291, it is settled position of law, that the contempt Court cannot go beyond the scope of writ Court order passed in the writ petition. It is on this premise that the jurisdiction of intra-Court appeal of this Court has been invoked in the present case.
4. The appellants have averred that a clear stand was taken before the contempt Court by filing of an application for dismissal of the contempt petition supported by an affidavit to the effect that an undertaking dated 08.05.2019 was tendered by the respondent-employee for making deduction and this reason was spelt out in the order passed by the competent authority in compliance of writ Court order passed in Writ-A No.4507 of 2022 on 12.09.2022. Recovery of the amount is to be made pursuant to order passed on 11.05.2023 which was never a subject of challenge, before the writ Court. The writ Court in the order passed on 12.09.2022 in Writ-A No.4507 of 2022 had clearly observed as under:
"It is made clear that if there was an undertaking by the petitioner at the relevant time when the excess salary was paid that the same can be recovered in future, then, the situation would be different otherwise the law as laid down by Hon'ble the Supreme Court would apply."
5. Once the writ Court had left it open to the authorities to take into account the implications of an undertaking filed by the employee, any decision based on the same once taken by the competent authority on 11.05.2023 would give rise to a new cause of action not capable of any interpretation in the contempt proceedings.
6. It is, thus, submitted before us that the contempt Court having stepped into the interpretation of undertaking has rather exceeded the scope of writ Court order which is impermissible in view of the law laid down by Hon'ble Apex Court in the aforementioned decisions, hence the appeal would lie.
7. On the bare perusal of the impugned order passed in the contempt application, it is evident that the undertaking filed by the opposite party has been interpreted in the contempt proceedings, particularly, when the order passed by the competent authority on that account remains unchallenged and can not be, a subject matter of challenge in a contempt proceeding.
8. It is also to be noted that learned counsel appearing for the respondent-employee is also disputing the authenticity of any such undertaking having been tendered by him of which there was no whisper in the writ petition.
9. Thus, for all the more reasons, the order passed by the competent authority in compliance of the writ Court order, requires adjudication in the appropriate proceedings.
10. In these circumstances, we hereby allow the appeal and set aside the order impugned.
11. It is open to the respondent to avail the appropriate remedy, against the fresh cause of action.
12. Let a copy of this order be filed in the contempt proceedings for further orders.
(Om Prakash Shukla, J.) (Attau Rahman Masoodi, J.)
Order Date :- 24.8.2023
Shubhankar
