Ashiq Hussain Dar And Others vs Atal Duloo And Others
2021 Latest Caselaw 879 j&K/2

                                                                                             S. No. 256
                                                                                             After Notice (S)
                     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                      AT SRINAGAR
                                           CCP (S) no. 210/2020 in
                                            WP (C) no. 742/2020
       Ashiq Hussain Dar and others
                                                                                      .... Petitioner(s)
                                          Through:        Mr Altaf Haqani, Sr. Advocate with
                                                          Mr Shakir Haqani, Advocate
                                                          V/s
       Atal Duloo and others
                                                                                      ... Respondent(s)
                                          Through:        Mr Shah Aamir, AAG
    CORAM:
                 Hon'ble Mr Justice Ali Mohammad Magrey, Judge
                                                   ORDER

10.08.2021 When this matter was taken up for consideration Mr Shah Aamir, AAG, sought time to apprise the court about the outcome of the Special Leave Petition filed by the respondents before the Hon'ble Supreme Court challenging the final order/ judgment of the Division Bench dated 18.11.2020 passed in LPA no. 136/2020 as also the judgment of the Writ Court passed in WP (C) no. 742/2020 on 19th March, 2020. He submits that the sanction for filing of the leave was granted by the Law Justice and Parliamentary Affairs Department in this behalf. This all is brought on record by the Additional Chief Secretary to Government, Health & Medical Education Department in the statement of facts dated 3.8.2021 filed in compliance to order dated 19.7.2021.

Mr Altaf Haqani, learned senior counsel for the petitioners, has resisted the grant of further time to the respondents and submits that there is no scope for granting further time or deferring the proceedings merely because the respondents have filed the SLP before the Hon'ble Supreme Court to challenge the orders of the Division Bench and the Writ Court. Mr Haqani, learned senior counsel, submits that the law on the subject is settled by the Division Bench of this Court in case titled Sajad Majid (Dr.) v. Syed Zahoor Ahmad (Dr.) & Anr. Reported as 1989 CrLJ 2065. Paragraphs 3, 8 and 11, being relevant, are taken note of hereunder:

"3. The matter again came up before the Division Bench on 1.3.1989 and for non-compliance of court direction dated 28.11.1989 and for non-

observance of the direction dated 16.2.1989 indicated, a show cause notice came to be issued against the respondent No: 1. The contempt petition came up before the Division Bench on 15.3.1989, when objections were filed and in para 11 of the same prayer was made to AMJAD AHMAD LONE 2021.08.10 16:17 defer the hearing of the contempt petition pending disposal of the S.L.P., I attest to the accuracy andbefore the Supreme Court against the order sought to be implemented integrity of this document and allegedly flouted by the respondent No:1. It is out of this objection raised by learned counsel for the respondent, The Division Bench indicated has framed the question: whether a party can be proceeded in contempt or rule issued against him exhausting the time limit for appeal against the order issued by the court sought to be implemented particularly when remedy of appeal is availed and pending disposal before the Superior court.

8. It is not disputed before us that SLP against the Court direction has been filled before the Supreme Court. It is also not disputed that no stay has been obtained against the implementation of the order but all the same the Court direction has been kept in abeyance by the respondent simply under the pretext of pendency of appeal before the apex Court against the Court order. There is no doubt that appeal against a judgment from one forum to another forum may be available under the Statute, the question is : Whether this provision even if availed by a party without obtaining a stay from the appellate Court will ipso facto keep the implementation of the order in abeyance? The proposition put forth by Mr. Khan, CGA appears to us misconstruing the provision of appeal and period of limitation. Non-compliance of the order during the pendency of appeal without stay order appears to us an attempt by a party to support his intention of not complying the Court direction. The, initiation of contempt proceedings for non-compliance of an order, in our opinion, will forestall only after service of stay order on the party provided, firstly, a certain period for compliance has been specified and within that period no contempt proceedings will lie. Secondly, when after the service of order the party has obtained stay from the appellate forum. Thirdly, on motion by the party time is granted by the Court for execution of the order which passed the same. No other circumstances apparently can be made available to a party against whom the order has been passed to sleep over the execution of the order or flout its execution. Mere pendency of appeal before the appellate Court against the order will not absolve the party not to comply the order and if he so does, it will be on his own risk without any legal justification and the provisions of appeal even if availed without any stay, will expose the party to contempt proceedings, for non-compliance and pendency of such appeal will not protect him from facing the proceedings of non- compliance of the order. Once a relief has been granted by a Court not modified or varied by such Court or its execution staved by appellate Court, its compliance is warranted from the date the party against whom it is passed or from the date he acquires knowledge of the said order. This observation will dispose the argument of Mr. Khan having submitted that no time limit is specified in the order of implementation. We, therefore, make it clear that a party against whom order has been passed by the Court, having knowledge of the same or the order being served on him, cannot take refuge of limitation period for preferring an appeal for non-compliance of the order or even if the appeal has been filed but no stay has been obtained against the order, contempt proceedings will be entertained against such party for non-compliance. However, it is the discretion of the Court finally, while holding the defaulting party guilty, to pass appropriate orders looking to the gravity of the matter and conduct of such party, but in no case rebate of non- compliance of the Court order will be made available merely an appeal without stay is sending. We are further supported in our view by the observations made by their Lordships of the Allahabad High Court, reported in 1978 Cri LJ 789, in these words:

It is the duty of each and every person who is a party in a proceeding before a Court to comply with the orders of the Court and if he has any grievance against the order he is free to file appeal or to make application before that Court for modification or discharge of the same, but unless that order is stayed, varied or modified the party concerned AMJAD AHMAD LONE 2021.08.10 16:17 has no justification to flout the order of the Court. Thus, a mere filing of I attest to the accuracy and integrity of this document the appeal under Article 136 of the Constitution before the Supreme Court against any order of the High Court cannot be a justification for disobedience or non-compliance of the orders of the High Court. Of course the position would be different if the Supreme Court takes cognizance of appeal and passes any positive order of stay.

To the same effect are the observations made by their Lordships of Himachal Pradesh High Court, reported in 1985 Cri LJ 1030 having observed as under (at p. 1033):

Mere preferment of an appeal does not automatically operate as a stay of the decision under appeal and till an application for stay is moved and granted by the appellate Court, or, in the alternative, the Court which rendered the decision is moved and grants an interim stay of the decision pending the preferment of an appeal and grant of stay by the appellate Court, the decision continues to be operative. Indeed, non- compliance with the decision on the mere ground that an appeal is contemplated to be preferred or is actually preferred, and that, therefore, the matter is sub-judice, may amount to contempt of Court punishable under the Contempt of Courts Act, 1971.

11. For the reasons given and observations made, the question framed gets settled and we hold that there is no bar to entertain contempt proceedings or issue Rule during limitation period provided for appeal or even if the appeal against the order is filed and stay is not obtained.

We answer the reference, formulated in the form of question accordingly.

The contempt petitions will come up for further order before the court early."

Heard learned counsel for the parties. In view of the stand taken by the respondents, it has become necessary to take a look at the conduct of the respondents. Therefore, orders dated 4.6.2021; 5.7.2021; 15.7.2021 and 19.7.2021 passed in the instant petition are extracted hereunder:

Order dated 4.6.2021.

"Statement of facts have been filed, a reading whereof reveals that the authorities concerned have totally failed to understand the judgment and order passed by this court in its correct perspective even when there was absolutely no doubt or ambiguity in the same. The respondents had been directed to release the salary including arrears of the petitioners, leaving it free to the respondents to conduct an inquiry in the matter. However, the official respondents have not complied with these clear directions and have yet again tried to reiterate the stand, which they had taken before the writ Court with regard to the alleged fraudulent engagement. The statement of facts and the stand taken therein is absolutely off the mark and is, accordingly, rejected. Let compliance be shown positively within three weeks from today. The salary including arrears be paid to the petitioners, failing which this Court shall be constrained to pass appropriate orders in this regard. List again on 5.7.2021."

Order dated 5.7.2021

" Final order/ judgment dated 19th March, 2020, passed in WP (C) no.

742/2020 clubbed with SWP no. 2648/2018 and CCP (S) no. 402/2019, AMJAD AHMAD LONE has remained pending implementation with the respondents even after 2021.08.10 16:17 I attest to the accuracy andthe dismissal of the Letters Patent Appeal, LPA no. 136/2020, vide order integrity of this document dated 18th November, 2020. Taking note of the dismissal of the LPA as also the approach adopted by the authorities vis-à-vis reiterating their stand of alleged fraudulent engagement, this Court, in terms of order dated 4th June, 2021, rejected the stand taken by the respondents in the statement of facts being absolutely off the mark and accordingly granted three weeks further time to the respondents for filing compliance with further direction that salary including arrears be paid to the petitioners failing which court shall be constrained to pass appropriate orders in this regard. Today Mr Shah Aamir, AAG, is seeking further time to report compliance. Mr Altaf Haqani, learned senior counsel, sought permission of the court to place on record the communication bearing No. DHSK/legal/Bpr-108/Part-II/478- 82 dated 01.07.2021 addressed to the Chief Medical Officer, Bandipora, by the Director Health Services, Kashmir Division, asking him to implement the judgment/ order subject to condition that the petitioners are physically working and attending the duties regularly strictly in compliance to the orders of this court. The said communication has, however, been withdrawn abi-nitio on the same day in terms of communication no. DHSK/Legal/Bpr-108/Part-II/483-86 dated 01.07.2021. Mr Haqani, learned Senior counsel submits that this act of the respondents amounts to further contempt of the court. The communications are taken on record. Let a copy of the same be furnished to Mr Shah Aamir, AAG, for taking up the matter with the Additional Secretary to Government, Health & Medical Education Department. Considering the totality of the circumstances, this Court feels it necessary to give respondents one more opportunity for report compliance. Accordingly, 10 days' time is granted to respondents for reporting compliance by releasing the salary and the arrears in favour of the petitioners failing which Director, Health Services, Kashmir Division and Chief Medical Officer, Bandipora, shall appear in person. Copy of the order be furnished to the learned counsel for the parties under the seal and signatures of Bench Secretary today itself. List on 15th July, 2021."

Order dated 15.7.2021

"Compliance is not filed. Mr Shah Aamir, AAG, submits that the officers who were directed to remain present have filed application seeking exemption. However, there is no such application available on record. The direction of the court for the officers is to release the salary, but instead of releasing the salary, they are filing applications. Be that as it may, in the event there is any application filed by the officers, the same shall be listed for consideration on 19th July, 2021 along with the compliance, if any. In case it turns out that no compliance is filed and the officers are not present without permission, the court shall be constrained to adopt coercive methods. List on 19th July, 2021, in the supplementary cause list."

Order dated 19.7.2021 "The need for asking the personal appearance of the officers has arisen because of the final judgment passed by this Court on 19th of March, 2020, is not implemented for more than a year and even after dismissal of the Letters Patent Appeal. Taking note of the dismissal of the LPA as also the approach adopted by the authorities vis-à-vis reiterating theirstand of alleged fraudulent engagement, this Court in terms of order passed on 4 th of June, 2021, rejected the stand taken by the respondents in the statement of facts, being absolutely off the mark and accordingly,

AMJAD AHMAD LONE granted three weeks further time to the respondents for filing the 2021.08.10 16:17 I attest to the accuracy andcompliance, with further direction that the salary including arrears be integrity of this document paid to the petitioners, failing which, Court shall be constrained to pass appropriate orders in the matter. Thereafter, on 5 th of July, 2021, even after lapse of a period of four weeks, the Court noticed compliance is not submitted, therefore, directed for personal appearance of the officers, present today. Today, the officers present before the Court submit that in order to ensure implementation of the order, they need some time because they have already submitted the case for approval to the Government and same is under active consideration. Be that as it may, the Court will not compromise on the non-implementation of the order despite providing ample opportunities to the respondents for filing the compliance. Three weeks last opportunity is granted to the respondents to submit the compliance of the order, failing which, Additional Chief Secretary to Government Health and Medical Education Department as also Director, Health Services Kashmir, shall appear in person before the Court on the next date of hearing. In the event order is implemented, the officers need not to appear in person before the Court on the next date of hearing. List on 10 th of August, 2021, in the Daily Supplementary Cause List."

The respondents have, for the first time, disclosed that they have taken recourse to the filing of SLP. The latest statement of facts filed by the responde nts is also silent about it. Without going into such issue, the court contemplates to proceed with the contempt petition in tune with the procedure established by law. But before so doing, let the Additional Chief Secretary, Health and Medical Education Department file his affidavit and reflect therein the progress the SLP has shown from the date of its filing. The needful shall be done within one week.

The above orders were reproduced for not only reflecting the conduct of the respondents but also to give an idea of how thoughtfully the delay has been caused in implementing the court orders.

List on 23rd August, 2021, as case no. 1.

Copy of the order be furnished to the learned counsel for the parties under the seal and signatures of Bench Secretary today itself.

(Ali Mohammad Magrey) Judge Srinagar 10.08.2021 Amjad Lone PS

AMJAD AHMAD LONE 2021.08.10 16:17 I attest to the accuracy and integrity of this document