Rafiq Ahamad vs Sri Jalil Ahmad And Another
2023 Latest Caselaw 1543 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 1
 
Case :- SPECIAL APPEAL No. - 16 of 2023
 
Appellant :- Rafiq Ahamad
 
Respondent :- Sri Jalil Ahmad And Another
 
Counsel for Appellant :- Gyanendra Singh
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Subhash Vidyarthi,J.

Ramesh Sinha, J. (Oral)

(1) This intra Court appeal has been filed by the appellant, Rafiq Ahamad, questioning the legality of the judgment and order dated 13.12.2022 passed by the learned Single Judge in Contempt Application (Civil) No. 2857 of 2022, whereby the learned Single Judge in last paragraph has directed as under :-

"... In case, any adjournment is given under compelling circumstances, then, the same shall not be granted without heavy cost."

(2) The genesis of the aforesaid contempt application is a judgment and order dated 13.07.2022 passed in Application U/S 482 No. 3369 of 2022 : Rafiq Ahamad Vs. State of U.P. and others. The operative portion of the said judgment and order dated 13.07.2022 is required to be noticed and is set-out here-in-below:-

"9. This Court is of the considered view that two orders, impugned in the present application, do not suffer from any illegality or perversity, which requires interference by this Court in extra-ordinary jurisdiction under Section 482 Cr.P.C. In view thereof, the present application is dismissed. However, the learned trial Court should proceed with the trial expeditiously and, decide the same, without accommodating request for adjournment made either on behalf of plaintiff or defendant,, say within a period of one year from the date certified copy of this order is served/submitted as the plaintiffs are enjoying the temporary injunction.

(3) A bare perusal of the operative portion of the said judgment and order dated 13.07.2022, clearly reveals that there was a mandatory direction upon the learned trial Court (being the respondent no.2 before us) to proceed with the trial expeditiously and decide the same without accommodating request for adjournment made either on behalf of plaintiff or defendant, within a period of one year from the date certified copy of the order is served/submitted.

(4) It appears that the aforesaid judgment and order dated 13.07.2022 was placed before the respondent no.2 on 19.07.2022. Thereafter, on 27.07.2022, the respondent no.2 had framed two issues, bearing issue nos. 6 and 7 regarding valuation of suit and Court, as preliminary issues, which were decided by the respondent no.2 vide order dated 19.09.2022. Thereafter, on 27.09.2022, the respondent no.1 preferred an amendment application under Order VI Rule 17 of the Code of Civil Procedure to add some new contents regarding Court fees, which was rejected by the respondent no.2 vide order dated 30.09.2022. Feeling aggrieved, respondent no.1 had preferred a revision before the District Judge, Pratapgarh, which was dismissed by the District Judge, Pratapgarh vide order dated 09.11.2022. The learned Contempt Judge, after appreciating the facts that due to pendency of the revision, the respondent no.2 had not proceeded with the suit and after dismissal of the revision, suit was listed on 11.11.2022, 17.11.2022 and 24.11.2022 and after applying mind, the respondent no.2 had passed on every date and the suit has been listed for 14.12.2022, dismissed the contempt application vide order dated 13.12.2022 and further observed that it was expected to the Civil Judge (Senior Division), Pratapgarh to decide the suit in question, expeditiously, without giving unnecessary adjournment to either of the parties and in case any adjournment is given under compelling circumstances, then, the same shall not be granted without heavy cost.

(5) The primary contention of the learned counsel for the appellant is that the direction of the Writ Court, while dismissing the application filed by the appellant under Section 482 Cr.P.C., was to proceed with the trial expeditiously and decide the same, without accommodating request for adjournment made either on behalf of plaintiff or defendant within a period of one year, but the Contempt Court, while adjudicating the contempt application filed by the appellant, has gone beyond the directions of the Writ Court and erred in observing that in case any adjournment is given under compelling circumstances, then, the same shall not be granted without heavy cost. Therefore, the same is liable to be set-aside.

(6) Having heard learned Counsel for the appellant and gone through the impugned judgment as well as material brought on record, it is required to be noticed here that the basic parameters governing the exercise of contempt jurisdiction were examined in Jhareswar Prasad Paul and another vs. Tarak Nath Ganguly and others : (2002) 5 SCC 352 by the Apex Court and it was held that the court cannot, in the guise of exercising contempt jurisdiction, grant substantive relief not covered by the order which is subject matter of the proceedings and that a substantive relief not covered by the initial order could not be considered in contempt proceedings. In this case also, the contempt court had proceeded on the basis of the allegation that the respondent authorities had not complied with the initial order, "effectively" and "in appropriate manner". In the aforesaid background, the observations made in the judgment are as follows :-

"11. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law, since the respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen and the democratic fabric of society will suffer if respect for the judiciary is undermined. The Contempt of Courts Act, 1971 has been introduced under the statute for the purpose of securing the feeling of confidence of the people in general for true and proper administration of justice in the country. The power to punish for contempt of court is a special power vested under the Constitution in the courts of record and also under the statute. The power is special and needs to be exercised with care and caution. It should be used sparingly by the courts on being satisfied regarding the true effect of contemptuous conduct. It is to be kept in mind that the court exercising the jurisdiction to punish for contempt does not function as an original or appellate court for determination of the disputes between the parties. The contempt jurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the court and if the conduct of the party who is alleged to have committed such disobedience is contumacious. The court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the applicant. The court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. At the cost of repetition, be it stated here that the court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party, which is alleged to have committed deliberate default in complying with the directions in the judgment or order. If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein then it will be better to direct the parties to approach the court which disposed of the matter for clarification of the order instead of the court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the court passing the judgment or order. If this limitation is borne in mind then criticisms which are sometimes levelled against the courts exercising contempt of court jurisdiction "that it has exceeded its powers in granting substantive relief and issuing a direction regarding the same without proper adjudication of the dispute" in its entirety can be avoided. This will also avoid multiplicity of proceedings because the party which is prejudicially affected by the judgment or order passed in the contempt proceeding and granting relief and issuing fresh directions is likely to challenge that order and that may give rise to another round of litigation arising from a proceeding which is intended to maintain the majesty and image of courts.

12. Judging the case in hand on the touchstone of the principles noted above, we find that the directions issued by the Division Bench in the impugned judgment in effect granted substantive reliefs not covered by the judgment/order passed in the original proceeding. In the judgment, no direction was issued by the High Court that the writ petitioners will be admitted to the cadre of Upper Division Clerks/Assistants in the Directorate. As noted earlier, they have all along been holding the posts of Clerk-cum-Cash Collector which are ex cadre posts. Entry of such persons into the cadre of Upper Division Clerks/Assistants has to be considered taking into account various aspects of the matter. It is one thing to say that the benefits under the government order may be extended to the writ petitioners also and extending benefits of the government order to the writ petitioners is one thing and directing their entry into the existing cadre of Office Assistants is a different thing. Such a dispute can only be determined on consideration of all relevant aspects of the matter and cannot be and should not be ordered in the summary proceeding for taking action for contempt of court. If the High Court felt that the grievance of the writ petitioners relating to the question of their entry into the cadre of Upper Division Clerks/Assistants has not been dealt with by the Court and specific direction has not been issued while disposing of the writ petitions/appeals then the appropriate course was to leave it to the parties (writ petitioners) to agitate the matter before the competent forum. Further the question of entry of holders of ex cadre posts, like the writ petitioners, into an existing cadre is a matter of policy which the Government has to decide. Be it noted here that on consideration of the matter the High Court held that no action for contempt of court need be taken against the respondents in the writ petition for deliberate disobedience of the judgment or order passed by the High Court. Thereafter it was not open to the court to pass any order granting substantive relief to the applicants (writ petitioners) on the plea that the question raised was also a part of their grievance in the writ petition.

13. In the facts and circumstances of the case, we are constrained to hold that the judgment/order passed by the High Court was without jurisdiction. In the result, the appeals are allowed. The judgment/order under challenge is set aside. The petition filed by the writ petitioners for taking action for contempt of court against the respondents is dismissed."

(7) The question as to whether a Court exercising contempt jurisdiction could pass supplementary order to the main order passed in the writ petition was taken up in the case of Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation and others Vs. M.George Ravishekaran and others : (2014) 3 SCC 373 by the Apex Court and it was held that the directions issued by the contempt judge which virtually amounted to supplementing the directions contained in the original order was beyond jurisdiction and could not be countenanced. The observations made in the judgment are as follows :-

"19.The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self-determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. The Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self-evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or wilful violation of the same. Decided issues cannot be reopened; nor can the plea of equities be considered. The Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles would appear to be the cumulative outcome of the precedents cited at the Bar, namely, Jhareswar Prasad Paul v. Tarak Nath Ganguly [(2002) 5 SCC 352, V.M. Manohar Prasad v. N.Ratnam Raju [(2004) 13 SCC 610], Bihar Finance Service House Construction Coop. Society Ltd. v. Gautam Goswami [(2008) 5 SCC 339] and Union of India v. Subedar Devassy PV[(2006) 1 SCC 613].

20. Applying the above settled principles to the case before us, it is clear that the direction of the High Court for creation of supernumerary posts of Marine Assistant Radio Operator cannot be countenanced. Not only the courts must act with utmost restraint before compelling the executive to create additional posts, the impugned direction virtually amounts to supplementing the directions contained in the order of the High Court dated 2-8-2006...the direction to create supernumerary posts at the stage of exercise of the contempt jurisdiction has to be understood to be an addition to the initial order passed in the writ petition. The argument that such a direction is implicit in the order dated 2-8-2006 [M. George Ravishekeran v. ONGC Ltd., WP No. 21518 of 2000, order dated 2-8-2006 (Mad)] is self-defeating. Neither is such a course of action open to balance the equities i.e. not to foreclose the promotional avenues of the petitioners, as vehemently urged by Shri Rao. The issue is one of jurisdiction and not of justification. Whether the direction issued would be justified by way of review or in exercise of any other jurisdiction is an aspect that does not concern us in the present case. Of relevance is the fact that an alternative direction had been issued by the High Court by its order dated 2-8-2006 [M. George Ravishekeran v. ONGC Ltd., WP No. 21518 of 2000, order dated 2-8-2006 (Mad)] and the appellants, as officers of the Corporation, have complied with the same. They cannot be, therefore, understood to have acted in wilful disobedience of the said order of the Court. All that was required in terms of the second direction having been complied with by the appellants, we are of the view that the order dated 2-8-2006 passed in M. George Ravishekeran v. ONGC Ltd. [M. George Ravishekeran v. ONGC Ltd., WP No. 21518 of 2000, order dated 2-8-2006 (Mad)] stands duly implemented. Consequently, we set aside the order dated 19-1-2012 passed in Contempt Petition No. 161 of 2010, as well as the impugned order dated 11-7-2012 passed in Sudhir Vasudeva v. M. George Ravi Shekeran [Contempt Appeal No. 2 of 2012, decided on 11-7-2012 (Mad)] and allow the present appeal."

(8) Taking into consideration the aforesaid proposition of law and also considering the facts and circumstances of the instant case, we are of the view that the directions issued by the Contempt Judge while passing the impugned order to the extent that ''in case any adjournment is given under compelling circumstances, then the same shall not be granted without heavy cost.', are virtually amounted to supplementing the directions contained in the original order passed by the Writ Court, which is beyond jurisdiction of the Contempt Court.

(9) We, therefore, set-aside the direction contained in last paragraph of the impugned judgment and order dated 13.12.2022 i.e. ''in case, any adjournment is given under compelling circumstances, then the same shall not be granted without heavy cost.'

(10) With the aforesaid direction, the instant intra Court appeal stands disposed of, accordingly.

(Subhash Vidyarthi, J.)       (Ramesh Sinha, J.)
 
Order Date :- 16.1.2023
 
Ajit/-