Allahabad High Court
Nagesh Mishra And 4 Others vs Amit Kishor on 1 May, 2023
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 7
Case :- CONTEMPT APPLICATION (CIVIL) No. - 882 of 2019
Applicant :- Nagesh Mishra And 4 Others
Opposite Party :- Amit Kishor
Counsel for Applicant :- Ashok Nath Tripathi
Counsel for Opposite Party :- Praveen Kumar Giri
Hon'ble Rohit Ranjan Agarwal,J.
Heard Sri Ashok Nath Tripathi, learned counsel for the applicants and learned Standing Counsel for the State.
The writ Court on 15.02.2018 while disposing off Writ-A No. 48833 of 2015 passed the following order;
"Heard Sri Ashok Nath Tripathi, learned counsel for the petitioners and Sri Rakesh Kumar Mishra, learned Standing Counsel appearing for the respondents.
Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties present petition is being decided at this stage itself.
Present petition has been filed with the following prayer:-
"i. Issue a writ, order or direction in the nature of Mandamus commanding the respondents to regularise the services of the petitioner since 1980, as per directions of this Court in Civil Miscellaneous Writ Petition No. 38234 of 1998, Daya Shanker Tiwari and others vs. District Magistrate, Deoria and others, (Annexure no. 15 to the writ petition).
ii. Issue a Writ, order or direction in the nature of Mandamus commanding the respondents to pay all service benefits, which were available to the petitioners since 1980, when they became eligible for promotion as Clerk or "Assistant Wasil Baki Navis".
iii. .....
iv. ....."
Submission of learned counsel for the petitioners is that the petitioners are required to be considered for regularization in terms of the U.P. Collection Amin Rules, 1974 as per the direction of this Court given in the case of Veerendra Singh vs. The Collector, Kanpur Dehat and others 1995 (2) E.S.C. 104, which was followed by another Hon'ble Judge in its judgment dated 24.4.2003 passed in Writ Petition No. 38234 of 1998 (Daya Shanker Tiwari and others vs. District Magistrate, Deoria and others), wherein out of four petitioners two petitioners herein, namely, Daya Shanker Tiwari and Nagesh Mishra were also the petitioners.
Submission is that in spite of the specific direction the matter is being referred to the State Government for directions in the matter, however, till date their claim have not been decided, which is wholly illegal. Submission is that even though the petitioners have retired from service, their claim for regularization and consequential benefits are liable to be considered.
The ground taken in the counter affidavit is that in U.P. Amin Sewa Niyamawali, 1980 there was no provision for considering the claim of the petitioners for regularization. Further stand taken is that the Sewa Niyamawali was amended in the year 2011 and thereafter the petitioners have been granted appointment in the year 2014.
Be that as it may, the fact remains that even though already directed by this Court the case of the petitioners has not been decided and only matter was kept pending seeking further direction in the matter.
In such view of the matter, it would be appropriate that the case of the petitioners, who are fighting their claim since long, may be considered by the respondent no. 2-Collector, Deoria on its own merits and a final decision may be taken by the competent authority.
Accordingly, present writ petition stands disposed of with liberty to the petitioners to file fresh representation alongwith necessary documents and judgments before the respondent no. 2-Collector, Deoria, who shall pass orders in accordance with law preferably within a period of six months from the date of production of a certified copy of this order before him. This period shall also include the period of seeking any instruction, if so required, from the State Government.
With the aforesaid observations, present writ petition stands disposed of."
Pursuant to the order of the writ Court, opposite party on 25.08.2018 decided the representation of the applicants, copy of which has been brought on record as annexure No. 1 to the affidavit of compliance.
Learned counsel for the applicants states that the opposite party has not carried out the orders passed by this Court rendered in case of Veerendra Singh Vs. The Collector, Kanpur Dehat and others, 1995 (2) ESC 104, as well as the order of Apex Court.
After hearing learned counsel for the parties and perusing the material on record, this Court finds that the writ Court on 25.08.2018 had only directed the applicant to file fresh representation alongwith necessary documents before the authority, who was required to consider and decide the same by speaking order. Pursuant to the direction of the writ Court, the authority concerned on 25.08.2018 had decided the representation of the applicants.
This Court is a Court of execution and not a Court of adjudication. As the order of writ Court was only to the extent to decide the representation of the applicants which the authorities had already done, this Court cannot venture into the merits of the case and decide the claim of the applicants.
Recently, the Apex Court in case of Dr. U.N. Bora, Ex. Chief Executive Officer and others Vs. Assam Roller Flour Mills Association and another 2022 (1) SCC 101 has held as under:-
"8. We are dealing with a civil contempt. The Contempt of Courts Act, 1971 explains a civil contempt to mean a wilful disobedience of a decision of the Court. Therefore, what is relevant is the "wilful" disobedience. Knowledge acquires substantial importance qua a contempt order. Merely because a subordinate official acted in disregard of an order passed by the Court, a liability cannot be fastened on a higher official in the absence of knowledge. When two views are possible, the element of wilfulness vanishes as it involves a mental element. It is a deliberate, conscious and intentional act. What is required is a proof beyond reasonable doubt since the proceedings are quasi-criminal in nature. Similarly, when a distinct mechanism is provided and that too, in the same judgment alleged to have been violated, a party has to exhaust the same before approaching the court in exercise of its jurisdiction under the Contempt of Courts Act, 1971. It is well open to the said party to contend that the benefit of the order passed has not been actually given, through separate proceedings while seeking appropriate relief but certainly not by way of a contempt proceeding. While dealing with a contempt petition, the Court is not expected to conduct a roving inquiry and go beyond the very judgment which was allegedly violated. The said principle has to be applied with more vigour when disputed questions of facts are involved and they were raised earlier but consciously not dealt with by creating a specific forum to decide the original proceedings."
In view of the said fact, as the order of writ Court was only to the extent to decide the representation in case it was filed by the applicants, which the opposite party had already done and decided the same on 25.08.2018, nothing remains to be adjudicated by this Court.
Contempt application is dismissed, accordingly. However, leaving it open to the applicants to challenge the order of opposite party before the appropriate forum, if so advised.
Contempt notice stands discharged.
File consign to record.
Order Date :- 1.5.2023
Shekhar
