Citation : 2024 Latest Caselaw 8838 AP
Judgement Date : 24 September, 2024
THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
CONTEMPT CASE No.2459 of 2023
ORDER:
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1. This Contempt Case has been filed complaining the alleged
willful disobedience in implementing the order dated 16.02.2023
passed by this Court in W.P.No.3894 of 2023.
2. Heard learned counsel for the petitioner, and the learned
counsel appearing for the respondents and perused the material
available on record.
3. The petitioner was initially appointed as Typist on 15.06.1999
in the Board of Intermediate Education. Subsequently, she was
promoted as Senior Assistant, Superintendent, later as
Administrative Officer and retired on 31.08.2022. The State
Government issued G.O.Ms.No.147 Finance (HRM-IV) Department
dated 30.06.2014 enhancing the age of superannuation from 58 to
60 years due to the enactment of A.P. Public Employment
(Regulation of Age of Superannuation) Amendment Act, 2014.
Further, the State Government of Andhra Pradesh also issued
G.O.Ms.No.15 Finance (HR-IV FR&LR) Department dated
31.01.2022 enhancing the age of superannuation of government NV,J
employees from 60 to 62 years with effect from 01.01.2022.
Accordingly, the petitioner submitted representation dated
09.12.2022 to the Secretary, Board of Intermediate Education to
continue her in service till attaining the age of superannuation of 62
years, by implementing G.O.Ms.No.15 Finance (HR IV FR & LR)
Department dated 31.01.2022. Since, Respondent No.3 did not
consider the representation of the petitioner, she preferred
W.P.No.3894 of 2023 before this Court.
4. Upon hearing both the parties, this Court passed an interim
direction in I.A.No.1 of 2023 in W.P.No.3894 of 2023 dated 16.02.2023
which reads as follows:
"Heard both sides.
This Hon'ble Court in W.P.No.33818 of 2022, has granted interim orders directing the respondents therein to continue the petitioners therein in service in view of the G.O.Ms.No.15, dated 31.01.2022.
In view of the said orders, this Court is inclined to pass interim orders directing the respondents to continue the service of the petitioner herein till she attains the age of superannuation of 62 years."
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5. Learned counsel for the petitioners submits that, after
obtaining order from this Court, the petitioner submitted
representation along with order copy to Respondent No.3. But,
Respondent No.3 did not implement the orders of this Court inspite
of receiving the copy of the order of this Court.
6. Learned counsel for the petitioner submits that, Respondent
Nos.1 & 3 being aware about the direction issued by this Court,
obviously for reasons best known to them, did not implement the
order of this Court which amounts to contempt, as defined under
Section 2(b) of the Contempt of Courts Act and that the respondent
is liable for punishment as per Section 12 of Contempt of Courts Act
and requested to punish them in accordance with law.
7. Inspite of the matter undergoing number of adjournments for
filing counter affidavit, Respondent No.1 neither filed counter
affidavit nor preferred any petition for discharge himself as party
respondent from the contempt proceedings.
8. Respondent No.2 filed counter affidavit, wherein, in Paragraph
No.5, it is stated that, the petitioner is working under the
administrative control of Respondent No.3 which is under the direct NV,J
administrative control of Respondent No.1. Respondent No.2 is not
having the competency, authority, jurisdiction against the petitioner
to take necessary action upon the interim orders dated 16.02.2023
passed by the Hon'ble High Court in W.P.No.3894 of 2023. It is
further stated that, Respondent No.3 is the answering respondent.
Since, Respondent No.2 is not the proper party and competent
authority having jurisdiction for implementation of the orders of this
Court, as such, he prayed that he should be discharged from the
contempt proceedings. He further prayed that, since there is no
deliberate or intentional disobedience on the part of Respondent
No.2, requested to close the contempt proceedings against him.
9. Respondent No.3 filed counter affidavit stating that, the
petitioner was working with the Board of Intermediate Education
which is not a Government department but a corporation established
under Companies Act 1956. Corporations/ companies/ societies, of
which the petitioner is an employee are categorized as (a)
Corporations/ Companies listed under the IX schedule, (b)
Societies/Cooperative Societies under the IX schedule, (c) other
institutions in the IX schedule, (d) societies listed in the X schedule
and (e) other institutions listed in the X schedule, in which Board of NV,J
Intermediate Education is listed at entry 19 of the X schedule of AP
Reorganisation Act, 2014, whereas, the Government of Andhra
Pradesh issued G.O.Ms. No.15 Finance (HR-IV FR&LR) Department
dated 31.01.2022 enhancing the age of superannuation of
Government employees from 60 years to 62 years, for which the
Andhra Pradesh Public Employment (Regulation of Age of
Superannuation) Act, 1984 (the 1984 Act for short), was amended
by the Andhra Pradesh Public Employment (Regulation of Age of
Superannuation) (Amendment) Act, 2022 vide G.O.Ms. No.15
Finance (HR-IV FR&LR) Department dated 31.01.2022 applies only
to Government employees.
10. It is submitted that, Section 2(1) of the 1984 Act, is
inapplicable to employees of Schedule IX and X Institutions as
enumerated in A.P. Reorganization Act. As such, the petitioner does
not fit into the description of Government employee as they are a
separate and distinct class, governed by separate service
regulations. As such the service conditions of retirement is guided by
the respective service regulations of the entity. As on date, all of
them are to retire on attaining the age of superannuation of 60 years
only. Board of Intermediate Education is an independent juristic NV,J
entity and cannot be identified with, or treated as, the State
Government. All Schedule IX and X Institutions are separate and
distinct entities covered by the provisions of the AP Reorganisation
Act, 2014 and employees of these entities cannot equate
themselves with regular State Government employees. While
Section 3A of the AP Reorganisation Act, 2014 specifically refers to
Government employees belonging to the state cadre/multi-zonal
cadre, employees of wholly owned by the State Government, Public
Sector Undertakings/ Corporations/Societies do not belong either to
the state cadre or to the multi-zonal cadre in terms of the
Presidential Order made under Article 371-D of the Constitution of
India. Section 3A of the AP Reorganisation Act, 2014has, therefore,
no application to these employees. Clause (iv) of Section 1(2) of the
1984 Act relates to every other officer or employee i.e. officers or
employees who do not fall within the ambit of clauses (i) to (iii), but
whose service conditions are regulated by rules made under the
proviso to Article 309 of the Constitution of India.
11. It is submitted that, in similar matters, while allowing the writ
appeals, the Hon'ble Division Bench of this Court in W.A.Nos.1033 NV,J
of 2022 & batch cases on 05.05.2023, made the following
observations:
"40. This Court also finds that in the counter affidavit filed the respondent No.1 had clearly specified that they had sought a clarification from the Government of Andhra Pradesh, whether the enhancement of age from 60 to 62 would apply to corporations, associations, societies etc., on 14.02.2022. In the counter, it is clearly mentioned that the writ petition is also premature till the Government takes a decision on the matter. Even in the past it is stated that the Government issued separate orders for corporations and the societies for enhancement of age. Therefore, it is stated that the petitioner's case will be considered on similar lines once the decision of the Government was obtained. The learned Advocate General submitted that this decision is spelt out by the memo, dated 23.09.2022, which clearly states G.O.Ms.No.15 is applicable to the employees, who are described in Section 1(2) of the Act only. It is also clarified by the Government that certain PSUs, Corporations etc., have enhanced the age to 62 without necessary approval and sanction and therefore, remedial action is to be taken by the very disciplinary action against this respondent.
41. In view of all the above, this Court is of the opinion that the orders of the learned single judge are not sustainable and a mandamus cannot be issued in the circumstances like this as there is no right in the writ petitioner to seek the relief.
42. These Writ Appeals are, therefore, allowed setting aside the common order passed in W.P.Nos.8225, 8226 and 15889 of 2022, dated 11.08.2022; and also the orders passed in W.P.Nos.29640 of 2022; 29684 of 2022; 29942 of 2022; 30133 of 2022; 30319 of 2022; 31027 of 2022 and 30133 of 2022. No order as to costs."
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12. Respondent No.3 further submits that, no resolution was passed
by the Board seeking approval of the Government for enhancing the
age of superannuation from 60 to 62 years. The board is a separate
entity and it is an autonomous organization. The service conditions of
the Government are not at all applicable to the service conditions of
the Board. Therefore, unless and until the State Government approved
the services of the employees of the board on par with its employees,
the conditions more particularly, superannuation of the employees of
the board cannot be enhanced and requested to close the contempt
proceedings against him.
13. Learned counsel for Respondent No.3 submits that, presently
Respondent No.3 is working as Commissioner of Labour Department.
He submits that, the service conditions enumerated under
G.O.Ms.No.15 Finance (HR-IV FR&LR) Department dated 31.01.2022
enhancing the age of superannuation age of government employees
from 60 to 62 years is not at all applicable to the petitioner herein, as
such, Respondent No.3 did not disobey the orders passed by this
Court and also requested to close the contempt proceedings against
Respondent No.3.
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14. On perusal of the counter affidavit filed by Respondent No.2, it
appears that, the Respondent No.2 being the Principal Secretary,
Finance Department, as stated in the counter affidavit, he No.2 does
not have any administrative control, authority or jurisdiction either to
continue the service or terminate the services of the petitioner herein.
Moreover the Department of Finance and Planning is an Advisory
Department to the State Government, as such, the core contention of
the Respondent No.2 that he is no way concerned with implementation
of the orders passed by this Court is valid and liable to be accepted, as
such, Respondent No.2 is not proper and necessary party to the
contempt proceedings. Hence, the contempt proceedings initiated by
the petitioner against him are liable to be closed.
15. As far as Respondent No.1 is concerned, even though he is the
Principal Secretary, School Education, Intermediate Education
Department, he did not choose to file any counter affidavit even after
filing vakalat and even after availing time on number of occasions i.e.
for a period more than eight months, neither filed reply affidavit nor
any Memo adopting the counter of Respondent Nos.2 & 3 nor
authorized any one of them to file the same on his behalf, which, NV,J
indicates either recklessness towards statutory obligation or disrespect
towards the orders of constitutional courts or Rule of Law.
16. On perusal of counter/reply affidavit filed by Respondent No.3,
there is no whisper in the counter affidavit as to why the orders of this
Court are not complied with by Respondent No.3. Moreso, It has not
been indicated that the orders of this Court are unimplementable or
beyond the control of Respondent No.3. Moreover, no information was
provided to this Court regarding the filing of any petition for stay
vacation or a writ appeal challenging the order in question in this
contempt case. Broadly, except stating facts in the counter affidavit,
Respondent No.3 did not deal with any contempt aspects as
contended by the petitioner.
17. On perusal of the affidavit of Respondent No.3, at Paragraph
No.4, it is stated that the Board of Intermediate Education is not a
Government Department but a corporation established under
Companies Act, 1956 and also listed as one of the
corporations/companies/ societies/institutions in the X Schedule of the
A.P. Reorganization Act, 2014. It is also submitted in Paragraph No.7
of the counter affidavit, that as per Section 1(2) of the Andhra Pradesh NV,J
Public Employment (Regulation of Age of Superannuation) Act, 1984,
the services of the petitioner do not fit into the description of
Government Employees, as they are separate and distinct class,
governed by separate service regulations. Their retirement is guided
by the respective service regulations of the entity and the employees of
the board cannot equate themselves with regular State Government
employees. Therefore, the petitioner herein is not entitled for
enhancement of age of superannuation from 60 to 62 years on par with
Government employees.
18. The Andhra Pradesh Intermediate Education Act, 1971 (Act
No.2 of 1971), was enacted by the State of Andhra Pradesh in the year
1971, to Provide For The Establishment Of A Board To Regulate And
Supervise The System Of Intermediate Education In The State Of
Andhra Pradesh And To Specify The Courses Of Study Therefor And
For Matters Connected Therewith.
19. Section 3 of the Act deals with Establishment, constitution,
incorporation of the Board, consisting of Chairman, Ex-Officio
Members, Nominated Members and Coopted Members of the Board,
from various departments of the Government.
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20. Section 7 of the Act deals with appointment of Secretary and his
functions and of other employees of the Board and it reads as follows:
(1) The Government shall appoint a Secretary to the Board for performing such functions as may be entrusted to him by or under this Act.
(2) (a) The Secretary shall be the chief executive officer of the Board and its committee and shall be responsible for implementing the resolutions of the Board or its committees;
(b) He shall be the custodian of all the records of the Board and shall be responsible for the efficient functioning of its office; (c) He shall exercise such powers of control and supervision over the offices under the Board and the staff therein, as may be prescribed.
(3) (a) Subject to such rules as may be made in this behalf, the Board may appoint such other officers and servants as it may deem necessary and proper for the efficient execution of its duties; (b) Notwithstanding anything in clause (a), the Government may transfer any officer or servant of the Board to the service of the Government, and transfer any officer of the Government to the service of the Board.
21. A bare look at Section 7(3)(b), it says that the Government may
appoint such other officers and servants as it may deem necessary
and proper for the efficient execution of its duties. It indicates that the
employees of the Board are also the employees of the Government for
all purposes, even for transfer. The Government is vested with the NV,J
ample power either to transfer any officer or employee of the Board to
the services of the Government and the Government employees can
also be posted at Intermediate Board. Therefore, the language
employed in Section 7(3)(b) of the Act indicates and categorically
specifies that the employees of the Board are Government employees
for all purposes. The recruitment of the employees of the Board is also
carried out by the Government either through Andhra Pradesh Public
Service Commission or through Special Notification.
22. Further, the Andhra Pradesh Public Employment (Regulation of
Age of Superannuation) Act, 1984, qualifies characteristics of
government employees for all the purposes. Act 23 of 1984 is passed
to regulate the age of superannuation of persons appointed to "Public
service and posts in connection with the affairs" of the State of Andhra
Pradesh. It shall apply to the following four categories of employees as
per Section 1(2):
(i) persons appointed to public services and posts in connection with the affairs of the State;
(ii) officers and other employees working in any local authority, whose salaries and allowances are paid out of the Consolidated Fund of the State;
NV,J
(iii) persons appointed to the Secretariat staff of the Houses of the State Legislature; and
(iv) every other officer or employee whose conditions of service are regulated by rules framed under the proviso to article 309 of the Constitution of India immediately before the commencement of this Act, other than the village officers and law officers; whether appointed before or after the commencement of this Act.
23. On perusal of Section 1(2) of the Andhra Pradesh Public
Employment (Regulation of Age of Superannuation) Act, 1984 (Act 23
of 1984), the provisions specified under Act 23 of 1984 are applicable
to the petitioner, read with Section 7(3)(b) of the Andhra Pradesh
Intermediate Education Act, 1971. Therefore, the provisions under
Amendment Act No.4 of 2022 qualifying the services of the petitioner
on par with Section 1(2) of Act 23 of 1984, as such the petitioner is
entitled for continuation of services on par with Government
Employees.
24. The other contention of Respondent No.3 is that, in view of the
ratio rendered by the Division Bench of this Court in W.A.Nos.1033 of
2023 & batch dated 05.05.2023, the petitioner is not entitled for
enhancement of superannuation from 60 to 62 years, whereas, the
issue before the Division Bench was with regard to services of the NV,J
petitioners therein who were employees of corporations or public sector
undertakings, but not employees of Board of Intermediate Education.
Therefore, the judgment relied on by Respondent No.3 is not
applicable to the present case on hand. Curiously, Respondent No.3
did not even choose to tender apology for not implementing the orders
of this Court.
25. It appears that, the Andhra Pradesh Intermediate Education Act,
1971 was enacted by the State of Andhra Pradesh Government for
establishment of Intermediate Board for effective monitoring and
accountability of intermediate education, but not for other purposes,
more so most of the Heads of the Departments of the State are
members of the Board. Therefore, the understanding of Respondent
No.3 that the Board was created under the provisions of the
Companies Act, 1956, since it is enlisted under Schedule IX & X of the
A.P. Reorganization Act, the employees of the Board are not entitled
for enhancement of superannuation on part with Government
employees is nothing but misconception of law only.
26. When once an order is passed, it is the duty of the authorities
to implement the same without giving any interpretation and if the NV,J
order is contrary to law, they are at liberty to file appropriate appeal
before the appellate authority. But, without preferring an appeal, the
respondent/contemnor cannot interpret the order and give different
meaning to the order passed by this Court, which is sought to be
implemented, as directed by this Court. Such an act of the
respondent/contemnor is illegal in view of the law declared by the
Hon'ble Apex Court in Commissioner, Karnataka Housing Board
vs. C. Muddaiah1, wherein, it is held as follows:
31. We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of Law is not complied with or is ignored, there will be an end of Rule of Law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected.
(2007) 7 SCC 689 NV,J
32. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a NV,J
Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the Authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected.
27. The same view is expressed by the Hon'ble Apex Court in
Prithawi Nath Ram vs. State of Jharkhand and others2, where the
Court held that, while dealing with an application for contempt, the
Court is really concerned with the question whether the earlier decision
which has received its finality had been complied with or not. It would
not be permissible for a Court to examine the correctness of the earlier
decision which had not been assailed and to take the view different
(2004) 7 SCC 261 NV,J
than what was taken in the earlier decision If any party concerned is
aggrieved by the order which in its opinion is wrong or against rules or
its implementation is neither practicable nor feasible, it should always
either approach to the Court that passed the order or invoke
jurisdiction of the Appellate Court. Rightness or wrongness of the order
cannot be urged in contempt proceedings. Right or wrong the order
has to be obeyed. Flouting an order of the Court would render the
party liable for contempt. While dealing with an application for
contempt the Court cannot traverse beyond the order, non-compliance
of which is alleged It cannot traverse beyond the order. It cannot test
correctness or otherwise of the order or give additional direction or
delete any direction. That would be exercising review jurisdiction while
dealing with an application for initiation of contempt proceedings. The
same would be impermissible and indefensible.
28. In The State of Bihar vs. Rani Sonabati Kumari3, the Hon'ble
Supreme Court while dealing with violation of order passed under
Order XXXIX Rules 1 & 2 of Civil Procedure Court, held that, a party
proceeded against Order XXXIX Rule 2(3) of C.P.C for disobedience of
an order of injunction cannot be held to have willfully disobeyed the
AIR 1961 SCC 221 NV,J
order provided two conditions are satisfied viz., (1) that the order was
ambiguous and was reasonably capable of more than one
interpretation (2) that the party being proceeded against in fact did not
intend to disobey the order, but conducted himself in accordance with
his interpretation of the order. The question whether a party has
understood an order in a particular manner and has conducted himself
in accordance with such a construction is primarily one of-fact, and
where the materials before the Court do not support such a state of
affairs, the Court cannot attribute an innocent intention based on
presumptions, for the only reason, that ingenuity of Counsel can
discover equivocation in the order which is the subject of enforcement.
Though undoubtedly proceedings under Order XXXIX Rule 2(3) of
C.P.C have a punitive aspect - as is evident from the contemnor being
liable to be ordered to be detained in civil prison, they are in substance
designed to effect the enforcement of or to execute the order. This is
clearly brought out by their identity with the procedure prescribed by
Order XXI Rule 32 of C.P.C for execution of a decree for permanent
injunction. No doubt the State Government not being a natural person
could not be ordered to be detained in civil prison, On the analogy of
Corporations; for which special provision is made in Order XXXIX Rule NV,J
V C.P.C, but beyond that, both when a decree for a permanent
injunction is executed and when an order of temporary injunction is
enforced the liability of the State Government to be proceeded against
appears to us clear.
29. While dealing with an application for contempt, the Court is really
concerned with the question as to whether the earlier decision which
has received its finality had been complied with or not. This Court is
primarily concerned with the question of conduct of the party who is
alleged to have committed default in complying with the directions in
the judgment or order. If there is any ambiguity or indefiniteness in the
order, it is for the concerned party to approach the Higher Court, if
according to him/her the same is not legally tenable and such a
question has necessarily to be agitated before the Higher Court.
Assuming that a question arose about impossibility of complying with
the order, if that was the case, atleast the respondent could have done
was to assail the correctness of the order/judgment before the Higher
Court. But, the respondents failed to comply with the order of this
Court. If any party concerned is aggrieved by the order which in its
opinion is wrong or against rules or its implementation is neither
practicable nor feasible, it should always either approach the Court that NV,J
passed the order or invoke jurisdiction of the Appellate Court.
Rightness or wrongness of the order cannot be urged in contempt
proceedings. Right or wrong the order has to be obeyed. Flouting an
order of the Court would render the party liable for contempt.
30. Applying the principle laid down by the Hon'ble Supreme Court to
the present facts of the case, this Court can safely conclude that
Respondent No.3 - Sri M.V. Seshagiri Babu, ex facie committed
Contempt of Court, as defined under Section 2(c) of the Contempt of
Courts Act, 1971 and liable for punishment under Section 12 of the Act.
Since, the present issue is in the knowledge of Respondent No.1 -
Sri Praveen Prakash and since he has not guided Respondent No.3
properly, and did not file counter affidavit, he is also liable for
punishment under the provisions of Contempt of Courts Act, 1971.
31. As discussed above, and in view of the findings recorded by this
Court in the above paragraphs, Respondent No.1 - Sri Praveen
Prakash and Respondent No.3 - Sri M.V. Seshagiri Rao, are liable for
punishment as per Section 12 of the Contempt of Courts Act, 1971,
and thereby they are punished sentencing them to undergo simple NV,J
imprisonment for a term of one (01) month and to pay a fine of
Rs.2,000/- (Rupees two thousand only) each.
32. In the result, contempt case is allowed, directing ,
Respondent No.1 - Sri Praveen Prakash and Respondent No.3 -
Sri M.V. Seshagiri Rao to undergo simple imprisonment for a term of
one (01) month and to pay a fine of Rs.2,000/- (Rupees two thousand
only) each.
33. Consequently, miscellaneous applications pending if any, shall
stand closed.
______________________________________ JUSTICE VENKATESWARLU NIMMAGADDA
Date: 24.09.2024
Contd....
34. After dictating the above order, learned counsel for Respondent
Nos.1 & 3/Contemnors requested this Court to suspend the above
order, so as to enable them to prefer an appeal.
35. At request of the learned counsel for the Respondent Nos.1 & 3/
Contemnors, the above order is suspended for a period of four (04) NV,J
weeks to prefer an appeal. In case no appeal is preferred or no stay is
granted by the Appellate Court in the appeal if any preferred,
Respondent Nos.1 & 3/Contemnors shall surrender before Registrar
(Judicial), High Court of Andhra Pradesh on 21.10.2024 before
05.00 p.m to undergo sentence.
______________________________________ JUSTICE VENKATESWARLU NIMMAGADDA Date: 24.09.2024
SP NV,J
THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
Date: 24.09.2024
SP
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