Smt. Manorma J. Gupta And Ors. vs Municipal Corporation Of Delhi ...
2002 Latest Caselaw 507 Del

JUDGMENT

Mahmood Ali Khan, J.

1. This order will dispose a petition filed under Contempt of Courts Act (The Act). It is alleged that the petitioners are legal representatives of late Mr. Jawahar Lal Gupta. Mr. Gupta was in the employment of the respondent MCD initially as Section Officer (later known as Junior Engineer). His services was terminated, which order was challenged by him in the writ petition bearing CW No. 12/1972. A learned Single Judge of this court allowed the writ petition 28.3.1980 directing his re-instatement in the service. This order was challenged by the respondent MCD in LPA No. 136/1980. A Division Bench of this court stayed the operation of the judgment dated 28.3.1980 on 16.1.1981. During the pendency of the LPA, Mr. Jawahar Lal Gupta died on 10.2.1985 and the petitioner were brought on record as his LRs. The said LPA was dismissed by the Division Bench vide order dated 13.8.1999. The order of the learned Single Judge dated 28.3.1980, as such, became final. No SLP has been filed against the said order. The respondents have not complied with the order dated 28.3.1980, therefore, they are guilty of contempt of this court. It is prayed that they should be punished under the Contempt of Courts Act and should be directed to pay the entire dues of late Mr. Jawahar Lal Gupta to the petitioners immediately.

2. In reply to the notice Mr. Guru Datt, Assistant Commissioner (Engg.) of the MCD filed his short affidavit in which a plea has been taken that the petition is barred by Section 20 of the Contempt of Courts Act. It is also stated that instead of resorting to the execution proceedings recourse to the provisions of the contempt proceedings is misconceived. An application has already been moved before the Division Bench for restoration of the appeal, which is pending. A sum of Rs. 73,500/- has already been paid to the petitioners as per detail given in para-8 of the affidavit. It was prayed that the application should be dismissed.

3. At the hearing of arguments a preliminary objection is raised on behalf of the respondent that the contempt action was not initiated within a period of one year from the date on which the contempt is alleged to have been committed as provided by Section 20 of the Contempt of Courts Act so the petition should be dismissed at the threshold. A reference was made to the judgment of the Supreme Court in Om Prakash Jaiswal v. D.K. Mittal and Anr. . It is further argued that the respondent had no intention to commit breach of the order of this court. The respondent had filed an appeal against the order of the learned Single Judge in which the operation of the judgment was stayed. The appeal was dismissed in default and an application for its restoration is pending. Lastly it was submitted that the amount of Rs. 73,500/- has already been paid to the LRs of deceased Mr. Jawahar Lal Gupta and in case the application for restoration is dismissed, the remaining amount, if any, found due to the deceased will also be paid.

4. Counsel for the petitioners, on the other hand, has argued that since the appeal filed by the respondent against the order of the learned Single Judge dated 28.3.1980 has been dismissed, the respondent was under legal obligation to comply with the order and make the payment due to the deceased to the petitioners which has not been done. As regards the judgment of the Supreme Court in Om Prakash Jaiswal (supra), it was argued that this judgment is under the consideration of a larger Bench of the Supreme Court.

5. After the case was reserved for orders, a three judges Bench of the Supreme Court in Pallav Sheth v. Custodian and Ors. has over-ruled the ratio of the judgment of Om Prakash Jaiswal (supra). There is no force in the argument that the contempt proceedings were not initiated against the respondent within the period stipulated under Section 20 of the Act. The argument is repelled.

6. This case was fixed for direction to find out whether the respondent had made payment of the amount which the Division Bench has directed to be paid to the petitioners during the pendency of the appeal. Only the counsel for the respondent appeared. He has informed that the order of the Division Bench has been complied with. He has further informed that the Division Bench has allowed the application of the respondent, set aside the order dated 13.8.1999 and has re-admitted the appeal. He has further stated that now the appeal is fixed for disposal on 17.5.2002. It is contended that on the restoration of the appeal and its re-admission, the stay order by which the operation of the order of the learned Single Judge dated 28.3.1980 was stayed stands revived and since the order, breach of which is complained against in this case, has been in operation, the respondent cannot be said to have violated the order intentionally and willfully and in contempt of this court. It is submitted that because of re-admission of the appeal and the revival of the stay order this petition has become infructuous and that the petitioners are no more interested in prosecuting this petition that is why they are not appearing although the case has been notified for direction on several dates.

7. It appears that the appeal has been re-admitted and during the pendency of the appeal the Division Bench has stayed the operation of the order of the learned Single Judge dated 28.3.1980. Consequently, the respondent cannot be accused of not complying with the order of the learned Single Judge and or committing default in making the payment in accordance with it. It appears that during the pendency of the appeal certain other payments (besides Rs. 73,500/-, details of which has been given in the affidavit filed on behalf of the respondent) have also been made to the petitioners under the order of the Division Bench. Anyhow, the respondent cannot be said to be in contempt of the court in this proceeding. The application has become infructuous. No further proceedings are warranted. Accordingly, the petition is dismissed. Noticed is discharged.

CM No. 938/00 is accordingly disposed of.