Tasneem Fatima vs Sri Amit Mohan Mishra
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Allahabad High Court

Tasneem Fatima vs Sri Amit Mohan Mishra on 20 February, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:11415-DB
 
Court No. - 1
 

 
Case :- SPECIAL APPEAL No. - 83 of 2025
 

 
Appellant :- Tasneem Fatima
 
Respondent :- Sri Amit Mohan Mishra
 
Counsel for Appellant :- Ashish Verma,Sharad Pathak
 
Counsel for Respondent :- Shailendra Singh Rajawat
 

 
Hon'ble Attau Rahman Masoodi J.
 

Hon'ble Subhash Vidyarthi J.

1. Supplementary affidavit filed by the appellant is taken on record.

2. Heard Shri Sharad Pathak, the learned counsel appearing on behalf of the appellant and Shri Shailendra Singh Rajawat, the learned counsel appearing on behalf of the sole respondent.

3. The instant intra-Court Appeal filed under Chapter VIII Rule 5 of the Allahabad High Court Rules is directed against the order dated 22.01.2025 passed by a Single Judge Bench of this Court in Contempt Application (Civil) No.2046 of 2023.

4. Shri Shailendra Singh Rajawat, learned counsel for the respondent has raised a preliminary objection against the maintainability of the special appeal stating that in view of the law laid down by the Hon'ble Supreme Court in Midnapore Peoples' Co-operative Bank Ltd. & Ors. v. Chunilal Nanda & Ors., (2006) 5 SCC 399, a special appeal will lie only if the High Court decides an issue or makes any direction relating to the merits of the dispute between the parties in a contempt proceedings.

5. In Midnapore Peoples' Coop. Bank Ltd.(supra), the following questions were considered by the Hon'ble Supreme Court:-

(i) Where the High Court, in a contempt proceeding, renders a decision on the merits of a dispute between the parties, either by an interlocutory order or final judgment, whether it is appealable under Section 19 of the Contempt of Courts Act, 1971? If not, what is the remedy of the person aggrieved?

(ii) Where such a decision on merits is rendered by an interlocutory order of a learned Single Judge, whether an intra-court appeal is available under clause 15 of the Letters Patent?

(iii) In a contempt proceeding initiated by a delinquent employee (against the enquiry officer as also the Chairman and Secretary in charge of the employer Bank), complaining of disobedience of an order directing completion of the enquiry in a time-bound schedule, whether the court can direct (a) that the employer shall reinstate the employee forthwith; (b) that the employee shall not be prevented from discharging his duties in any manner; (c) that the employee shall be paid all arrears of salary; (d) that the enquiry officer shall cease to be the enquiry officer and the employer shall appoint a fresh enquiry officer; and (e) that the suspension shall be deemed to have been revoked?"

6. While dealing with the first question, the Hon'ble Supreme Court referred to various precedents and thereafter, answered the question in the following words:-

"1. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized 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).

The first point is answered accordingly."

7. The provision of Special Appeal is contained in Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 which is as follows:-

"5. Special appeal :- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of the jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award--(a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge."

8. Thus it is clear that a Special Appeal lies from a judgment, unless it falls within the exceptions mentioned in under Chapter VIII Rule 5. A judgment dismissing a contempt petition is not mentioned in any of the exceptions mentioned in Chapter VIII Rule 5.

9. The question of maintainability of Special Appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules was not in consideration of the Hon'ble Supreme Court in case of Midnapore Peoples' Coop. Bank Ltd.(supra). It is settled law that a precedent is to be applied in light of the law laid down in that case in view of the factual background and in view of the points involved in the case. Since Chapter VIII Rule 5 of the Allahabad High Court Rules was not in issue before the Hon'ble Supreme Court in the case of Midnapore Peoples' Coop. Bank Ltd. (Supra), this judgment is not relevant for deciding the maintainability of the present special appeal filed under Chapter VIII Rule 5 of the Allahabad High Court Rules against an order dismissing a contempt petition.

10. For examining the maintainability of the present Special Appeal, only this much is to be examined whether the order dated 22.01.2025 which under challenge in this Appeal, amounts to a "judgment". The order dated 22.01.2025 is being reproduced below: -

"Heard learned counsel for the parties.

This petition has been filed for violation of judgement and order dated 26.05.2023 passed in Writ-A No.3795 of 2023.

A compliance affidavit has been filed by the opposite parties, wherein a decision has been taken by the authority is not to make payment of salary to the applicant in pursuance to an order passed by the Lokayukt against the applicant. The applicant tried to assail the order passed by the opposite party on merits. In the contempt petition merits of the order cannot be gone into.

Since, the order has been passed, no further orders are required to be passed in this contempt petition.

Petition is consigned to record.

Notices, if any, are discharged. However, it is provided in case petitioner is aggrieved by the order passed by the authority on 25.07.2023, he is free to assail the order in accordance with law."

11. The order dated 26.05.2023 passed in Writ-A No.3795 of 2023, disobedience whereof was alleged by the appellant in the Contempt petition, reads as follows:-

"1. The present writ petition has been filed by the petitioner alleging that despite no order being passed against the petitioner, the petitioner has not been paid the salary for the month of July, 2022 and from October, 2022 till date.

2. In view of the said allegations, this Court had called for instructions.

3. Learned Standing Counsel has produced the instructions. It is recorded that the salary is not being paid to the petitioner, as paying salary to an irregular employee would result in financial loss. The instructions are taken on record.

4. The said ground is wholly arbitrary, inasmuch as, the relation of employer and employee continues. There is no provision, which empowers the respondents, to stop the salary merely on apprehension with regard to the appointment of the petitioner.

5. In view of the said instructions, the stand taken by the respondents is found to be arbitrary, as such, the present petition is disposed off directing the respondents to pay month to month salary to the petitioner, in accordance with law.

6. The arrears, which has not been paid to the petitioner, shall be paid within a period of two months from today. However, this Court is not going or stopping the respondent to take any action as may be authorized under law."

12. The petitioner had submitted a representation for compliance of the aforesaid order.

13. On 18.11.2024, the District Basic Education Officer, Sultanpur wrote a letter to the Finance and Accounts Officer, Basic Education, Sultanpur (the respondent), stating that although a complaint had been filed before Lokayukta, the same has been dismissed as not-maintainable. He directed the respondent to ensure compliance of the order dated 26.05.2023 passed by this Court and further stated that there was no occasion for passing any speaking order in this regard as it is the official duty of the respondent to ensure compliance of the order passed by the High Court.

14. After passing of the aforesaid order dated 18.11.2024, the respondent has passed an order dated 25.07.2023 stating that a complaint had been raised against the petitioner that he had secured appointment on the basis of forged documents before the Lokayukta. Though Lokayukta has dismissed the complaint by order dated 24.04.2023, however, the Lokayukta has found the Manager of the institution (the appellant) for issuing a fake experience certificate/ fake selection file.

15. The respondent stated in the order that as the appellant's appointment was against the rules, the complaint filed before the Lokayukta has been disposed off and no direction has been issued to him for making payment of salary to the appellant, it would not be proper to make payment of salary to the appellant.

16. This Court had not directed the respondents to consider the petitioner's request for payment of salary and pass appropriate orders in this regard. In the order dated 26.05.2023 passed in Writ-A No.3795 of 2023, this Court has issued a categorical direction to the respondent to pay month to month salary to the petitioner and the arrears were also directed to be paid within two months.

17. The order dated 26.05.2023 was not challenged by the respondents and it attained finality and, therefore, it was not open to the respondents in that writ petition to question the correctness of that order and they have no option except for complying with the order.

18. The Contempt Court has dismissed the contempt petition on the ground that payment of salary to the appellant has been declined pursuant to the order passed by the Lokayukta against the appellant. This order of the Contempt Court dismissing the Contempt Petition amounts to a 'judgment' and, therefore, the Special Appeal against the aforesaid order is maintainable under Chapter VIII Rule 5 of the Allahabad High Court Rules.

19. As has been already been noted above, the Lokayukta has dismissed the complaint as not maintainable and it has not issued any directions for stoppage of payment of salary to the petitioner.

20. Further, when this Court has passed a specific order for payment of salary, assuming that any contradictory order is passed by the Lokayukta, which is not the case here, it is not open for the respondents to decline to comply with the order passed by this Court on any pretext, whatsoever.

21. In view of the foregoing discussion, we are of the considered view that the order dated 26.05.2023 passed by the Contempt Court dismissing the contempt petition, is not sustainable is law. We are prima facie satisfied that the respondent having declined payment of salary in spite of order passed by the Writ Court, is liable to face contempt proceedings.

22. Accordingly, the appeal is allowed and the order dated 22.01.2025 passed by the Hon'ble Single Judge in Contempt Application (Civil) No.2046 of 2023 is set-aside.

23. The contempt petition is restored to its original number and let it be listed before the appropriate Court on 24.02.2025 for further proceedings.

.

(Subhash Vidyarthi,J.) (A. R. Masoodi,J.)

Order Date: 20.02.2025

-Amit K-