Jharkhand High Court
Yamuna Vishwakarma vs The State Of Jharkhand on 8 December, 2023
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Contempt Case (Civil) No. 344 of 2023
Yamuna Vishwakarma ... ... Petitioner
Versus
1. The State of Jharkhand
2. Sri Shekhar Jamuar, Deputy Commissioner, Garhwa
... Opposite Parties
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. D.K. Dubey, Advocate
Mr. Raju Koiri, Advocate
For the Opposite Party No. 2 : Mr. Devesh Krishna,SC(Mines)-III
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09/08.12.2023 The present contempt petition has been filed for
initiating a contempt proceeding against the
contemnors/opposite parties alleging willful disobedience of
order dated 05.12.2022 passed in W.P.(S) No. 5972 of 2022.
2. Mr. Devesh Krishna, learned SC (Mines)-III appearing
on behalf of the opposite party no. 2, refers to paragraph no. 15
of the supplementary show cause affidavit dated 07.12.2023 filed
on behalf of the said opposite party, which reads as under:
15. That it is most humbly submitted that vide order
passed in W.P.(S) No. 5972/2022, the opposite party was
directed to pass a reasoned order after considering the
case that petitioner was appointed on sanctioned and
vacant post and decide accordingly and if the claim is
rejected, he shall not be removed from service and
accordingly, after going through all the documents and
notification and in compliance of the order dated
08.09.2023, the answering O.P. has revisited its earlier
reasoned order and passed this fresh reasoned order
dated 06.12.2023 rejecting the claim for regularization
however, the petitioner has not been removed from
service and the order has been complied in full letter and
spirit and hence, the contempt proceedings may kindly
be dropped.
3. A copy of reasoned order dated 06.12.2023 passed
by the opposite party no. 2 has been annexed as Annexure-C to
the supplementary show cause affidavit dated 07.12.2023.
4. It is thus submitted that the aforesaid order of this
Court passed in W.P.(S) No. 5972 of 2022 has been complied by
the opposite party no. 2.
5. As against this, Mr. D.K. Dubey, learned counsel for
the petitioner, submits that passing of reasoned order dated
06.12.2023 is an arbitrary exercise of power by the opposite
party no. 2 as the petitioner despite being eligible to get
regularized in service, his said claim has been rejected. It is
further submitted that the said reasoned order is also in defiance
of the observation made in the order dated 08.09.2023 passed in
the present contempt case.
6. Considering the said submission of learned counsel
for the petitioner, it would be relevant to refer the relevant part
of the order dated 05.12.2022 passed in W.P.(S) No. 5972 of
2022, which reads as under:
3. Counsel for the petitioner submits that the case
of the petitioner for regularization should have been
considered in terms of Memo No. 114 dated 25.2.2014.
He submits that petitioner was appointed against
sanctioned and vacant post.
4. Counsel for the respondents submits that if
petitioner files a fresh representation, his grievance can
be looked into.
5. Considering the fact, I direct the petitioner to file
a fresh detailed representation before the Deputy
Commissioner, Garhwa, who will consider his case and
pass a reasoned order as per law. If it is found that
petitioner is entitled for any benefit, the same should be
extended to him. The entire process should be completed
within a period of sixteen weeks.
6. Considering the aforesaid fact that the petitioner
was appointed against sanctioned and vacant post, it is
made clear that petitioner will not be removed from
service even if the order is not in his favour.
7. Accordingly, the instant writ application stands
disposed of.
7. As per the stand taken by the opposite party no. 2 in
the supplementary show cause affidavit dated 07.12.2023,
though the petitioner has not been found eligible for
regularization, yet he has not been removed from service
keeping in view the observation made in paragraph no. 6 of the
order dated 05.12.2022 passed in W.P.(S) No. 5972 of 2022.
8. The Hon'ble Supreme Court in the case of "Director
of Education, Uttaranchal & Ors. Vs. Ved Prakash Joshi &
Ors." reported in (2005) 6 SCC 98, has observed as under:
7. 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 a view different
than what was taken in the earlier decision. A similar
view was taken in K.G. Derasari v. Union of India [(2001)
10 SCC 496 : 2002 SCC (L&S) 756] . The court exercising
contempt jurisdiction is primarily concerned with the
question of contumacious conduct of the party who is
alleged to have committed default in complying with the
directions in the judgment or order. If there was no
ambiguity or indefiniteness in the order, it is for the
party concerned to approach the higher court if
according to him the same is not legally tenable. Such a
question has necessarily to be agitated before the higher
court. The court exercising contempt jurisdiction cannot
take upon itself power to decide the original proceedings
in a manner not dealt with by the court passing the
judgment or order. 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. In
other words, it cannot say what should not have been
done or what should have been done. It cannot traverse
beyond the order. It cannot test correctness or otherwise
of the order or give additional directions 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. In that view of the matter, the order of
the High Court is set aside.
9. It would be evident from the aforesaid observation
made by the Hon'ble Supreme Court that the court exercising
contempt jurisdiction cannot take upon itself the power to decide
the original proceeding in a manner not dealt with by the court
while passing the judgment or order in original proceeding. The
court cannot traverse beyond the order, non-compliance of which
has been alleged. It cannot test correctness or otherwise of the
order by giving additional directions or deleting any direction as
the same would be like exercising review jurisdiction while
dealing with an application for initiation of contempt
proceedings.
10. Considering the aforesaid facts and circumstance,
the Court is of the view that no case for initiation of contempt
proceeding against the opposite party no. 2 is made out. The
contempt proceeding as against the opposite parties is hereby
dropped.
11. The contempt petition is accordingly disposed of.
12. The petitioner is, however, at liberty to take
appropriate recourse as permissible under law against the
reasoned order passed by the opposite party no. 2.
(Rajesh Shankar, J.)
Manish
