Kishun Oraon @ Kishnu Oraon vs State Of Jharkhand
2023 Latest Caselaw 2805 Jhar

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
        Cont. Case (Civil) No. 349 of 2023
Kishun Oraon @ Kishnu Oraon, aged about 43 years, S/o Guman
Oraon, R/o Vilalge Badri, P.O- Barsatu, P.S- bundu & District -
Ranchi.
                                       ...  ...   ...   ...   Petitioner
                    Versus
1. State of Jharkhand
2. Dr. Ehtesham Wakarib, S/o Not known to the petitioner,
   Superintendent of Police, Gumla, P.O, P.S. & District - Gumla.
                               ...     ...   Opposite Parties/Contemnors
                    ---------
CORAM: SRI SANJAYA KUMAR MISHRA, C.J.
             SRI ANANDA SEN, J.
                    ---------
For the Petitioner:         Mr. Sidhartha Roy, Advocate
For the Opp. Partis:        Mr. Rahul Saboo, G.P.-II
                    ---------
06/Dated: 11.08.2023

      Upon hearing the learned counsel for the parties, this Court

passed the following, (Per, Sanjaya Kumar Mishra, C.J.)

                          ORDER

1) By filing this Civil Contempt, the petitioner, a dismissed Constable

of the Police Department, has alleged that there has been violation

of the order passed by the Division Bench of this Court in L.P.A.

No. 897 of 2019 which was disposed off along with I.A. No. 2142 of

2022 as per the detailed judgment dated 24.11.2022.

2) The facts of this case at this stage are not in dispute. The petitioner

approached this Court by filing W.P. (S) No. 2086 of 2017 which

was dismissed on merit on 13.06.2019. The present petitioner filed

an intra court appeal which was registered as L.P.A. No. 897 of

2019. The Division Bench took into consideration the fact that the

petitioner only gave the information to the other two Police

Constables that the deceased Vinod Oraon, a co-villager of the

petitioner, has links with terrorist organization like the Left Wing

extremist. Such information led the other two police officials to pick

up the deceased from his house and bring him the police station

where he was assaulted and in course of such assault it is

submitted that that the deceased sustained injuries and

succumbed to the injuries. A departmental proceeding was initiated

against all the three police personnel and they were found to be

guilty of the offence. However, the disciplinary authority imposed

minor punishments of withholding six increments without

cumulative effect against the other two police personnel, but as far

as the present petitioner Kishun Oraon @ Kishon is concerned, it

came to the conclusion his role is graver than the other two and,

therefore, passed the order of dismissal from service.

3) It appears to us at this stage that the disciplinary authority was of

the view that the action of the petitioner in instigating the other

persons by giving false information that the Vinod Oraon is having

links with left wing extremist is required to be dealt with more

severely than the persons who made the actual assault. However,

the Division Bench presided over by the then Chief Justice of this

Court came to the conclusion that the punishment given to the

petitioner is harsh in comparison of the punishment given to the

other two accused persons/ delinquents and, therefore, remanded

the matter back to the disciplinary authority for reconsideration of

the matter. It is appropriate for us to quote the exact order passed

by Division Bench:-

"27. This Court conscious with the legal position that the High Court sitting under Article 226 of the Constitution of India cannot impose punishment upon the delinquent employee or even reduce it, rather, it is the domain of the disciplinary authority, therefore, the matter is required to be considered afresh by the respondents-authorities.

28. Accordingly, the matter is remitted before the authority concerned to take decision afresh in accordance with law, within the period of three months' from the date of receipt of copy of this order on the basis of the discussion made hereinabove."

4) Trying to make out a case for contempt, the learned counsel for the

petitioner would submit that once the Court has directed that the

matter should be considered afresh on the basis of the discussions

made in the preceding paragraphs of the judgment, non-

compliance of the same itself makes out a case of contempt of

court.

5) Civil Contempt has been defined under Clause (b) of Section 2 of

the Contempt of Courts Act, 1971. It means willful disobedience of

any judgment, decree, direction, order, writ or other process of a

court of willful breach of an undertaking given to a court. Thus, if

there is a violation of order or a decree, in which the respondent

was given a positive direction, then it shall be called as a willful and

deliberate disobedience of the Court's order. But, in case the

matter is matter remanded back to the disciplinary authority with

certain observations in the body of the judgment, then the question

arises whether it will amount to a contempt if the disciplinary

authority takes a view different from the view taken by the Division

Bench in course of discussions of the fact and law relating to the

case in question. In this regard, we take note of the reported case

of Abhishk Kumar Singh vs. G. Pattanaik and Others, 2021 (7)

SCC 613, wherein while dealing with similar situation where the

punishment was set aside and the matter was remitted back to the

respondent for reconsideration by considering the segregation of

the tainted from the untainted candidates. After consideration of

the matter and upon hearing of the petitioner in that case the

respondent maintained the order passed earlier which was set

aside, the Hon'ble Supreme Court held that:-

"72. We would, therefore, confine our analysis as to whether

the respondents were justified in passing subject termination

Order dated 2-3-2020 without giving prior opportunity of

hearing to the petitioners. In light of the conclusion reached by

the respondents in the stated Order dated 2-3-2020 -- that it

was not possible to segregate the tainted from the untainted

candidates, in law, it must follow that the respondents could

annul the entire selection process and pass the impugned order

without giving individual notices to the petitioners and

similarly placed persons. We are fortified in taking this view in

terms of the exposition in O. Chakradhar and the subsequent

decisions of this Court in Joginder Pal , Veerendra Kumar

Gautam and Vikas Pratap Singh v. State of Chhattisgarh ,

adverted to in para 13 of the judgment dated 15-11-2018 of this

Court while disposing of earlier appeals between the parties.

73. In other words, since the respondents have concluded that

it was not possible to segregate tainted from the untainted

candidates because of the reasons noted in the termination

Order dated 2-3-2020, in law, there was nothing wrong in the

respondents issuing the said termination order without

affording prior opportunity to the petitioners and similarly

placed persons. Had it been a case of even tittle of possibility in

segregating the tainted from the untainted candidates, which

exercise the respondents were permitted to engage in, in terms

of the decision of this Court dated 15-11-2018, it would have

been a different matter. In that case alone, the petitioners and

similarly placed persons could complain of wilful disobedience

of the order passed by this Court dated 15-11-2018."

6) In this case, a show-cause has been filed. However, on a careful

examination of the observations made by the Committee to which

the matter was referred, it appears that the Committee has taken

into consideration the facts of the case and has come to the

conclusion the order of dismissal from service need not be

modified.

7) It is true that the petitioner has grievances regarding the same.

According to the learned counsel for the petitioner, the

observations made by the Division Bench should have been taken

into consideration and only on that basis the order for

reconsideration should have been passed. But, we are not inclined

to agree with such submissions, as it is the duties as well as the

rights of the disciplinary authority to take a decision and further the

High Court never substituted its decision on the quantum of

punishment and remitted the matter back to the disciplinary

authority. So, in our considered opinion, even after remand, the

disciplinary authority does enjoy certain liberty or has scope of

considering the matter and take an independent view. In this case,

those matters were not placed before the Court like the role of the

petitioner in the whole episode and a concrete conclusion which

may not be consistent with the observations made by the Division

Bench. Therefore, we are also of the view that such a matter

cannot be held to be a contempt of court. If we accept learned

counsel's argument and hold that the respondents are guilty of

contempt, then it will amount to adjudication of the issues of fact

and law relating to the dispute between the department and the

present petitioner. It is not permissible in a contempt application.

In the contempt application, the Court in seisin of the

matter is only required to consider whether there has been a willful

and deliberate violation of its order, decree, mandamus, etc.

passed in the case. In this case, we find no such situation

appearing. Moreover, our view is also supported by the latest

judgment of the Supreme Court passed in Abhishek Kumar

Singh (supra), wherein the Hon'ble Supreme Court has held that

in a civil contempt, even if there is an interpretation/doubt that the

order would not be contumacious in conduct and in such cases,

contempt will not lie.

8) There is some delay in disposal of the matter after remand by the

disciplinary authority, i.e., because of constitution of a Committee

and the Committee again looked into the facts of the case and

passed a reasoned order. For that the contemnor-respondent has

begged unconditional apology in writing which is supported by an

affidavit. In that view of the matter, this Contempt application is

dropped. However, the petitioner is at liberty to approach the Court

by filing appropriate writ, if so advised, in case the cause of action

subsists.

9) Pending Interlocutory Applications, if any, stand disposed of.

10) There shall be no orders as to costs.

11) Urgent Certified copies as per Rules.

(Sanjaya Kumar Mishra, C.J.)

(Ananda Sen, J.) Manoj/MM