The University Of Calicut vs Ajesh P.K
2022 Latest Caselaw 9872 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                             &
          THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
                    WA NO. 1134 OF 2022
   AGAINST THE INTERIM ORDER DATED 14.07.2022 IN WP(C)
             4584/2020 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1 TO 4:

    1     THE UNIVERSITY OF CALICUT,
          REPRESENTED BY ITS REGISTRAR, CALICUT
          UNIVERSITY P.O., THENJIPALAM,
          MALAPPURAM DISTRICT - 673 635.
    2     THE REGISTRAR UNIVERSITY OF CALICUT,
          CALICUT UNIVERSITY P.O., THENJIPALAM,
          MALAPPURAM DISTRICT - 673 635.
    3     VICE CHANCELLOR,
          UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O.,
          THENJIPALAM, MALAPPURAM DISTRICT - 673 635.
    4     INSTRUMENTATION ENGINEER,
          UNIVERSITY SCIENCE INSTRUMENTATION CENTRE,
          UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O.,
          THENJIPALAM, MALAPPURAM DISTRICT - 673 635.
          BY ADV P.C.SASIDHARAN


RESPONDENTS/PETITIONERS & RESPONDENTS 5 TO 8:

    1     AJESH P.K.
          HOUSE NO.10, WARD 13A, PATTAYIL KEERANGATT
          PARAKKATT THODY, CHELEMBRA (PO),
          MALAPPURAM (DIST) - 673 634.
    2     AFTHAB K.,
          AFTHAB MANZIL, CHENAKKALANGADI (PO),
          MALAPPURAM - 673 636.
    3     SAROOP C.P.,
          CHOVIMADATHIL PATHIRAT, WALLIKUNNU P.O.,
          ATHANIKKAL, MALAPPURAM - 673 314.
    4     VIJU K.
          SIVASAILAM, SURGANAGAR, AMAKULAM,
          VADAKKANCHERY, PALAKKAD - 678 683.
 Writ Appeal No.1134 of 2022

                              -: 2 :-



     5      ALI MOHAMMED V.
            VALLARIKKAL AYYAMPAKKAL HO, VAIDYARANGADI P.O.,
            RAMANATTUKARA - 673 633.
     6      ANSAR ARIMBRA
            ARIMBRA H.O., CHULIPARA P.O., KOOKKALLU,
            VENNIYOOR, MALAPPURAM - 676 508.
            SRI.GEORGE ABRAHAM
         THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
31.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Writ Appeal No.1134 of 2022

                                   -: 3 :-




             P.B.SURESH KUMAR & C.S.SUDHA, JJ.
              -----------------------------------------------
                 Writ Appeal No.1134 of 2022
              -----------------------------------------------
          Dated this the 31st day of August, 2022.


                              JUDGMENT

P.B.Suresh Kumar, J.

This appeal is directed against the order dated

14.07.2022 in W.P.(C) No.4584 of 2020, in terms of which the

learned Single Judge of this Court, after having heard the writ

petition in full, adjourned the matter sine die to await the result

of a contempt of court case instituted by the petitioner

alleging non-compliance of the direction contained in an

interim order passed in the writ petition which is being dealt

with by another learned Judge of this Court. The appellants are

respondents 1 to 4 in the writ petition.

2. The skeleton facts is suffice for the disposal of

this appeal. Parties are referred to in this judgment for

convenience, as they appear in the writ petition.

3. The petitioners 1 and 2 are persons who were

engaged by the University of Calicut (the University) on Writ Appeal No.1134 of 2022

contract basis for a fixed term as Computer Technician and

Electronic Technician respectively. The writ petition was

instituted seeking inter alia a direction to the University to re-

engage the petitioners and permit them to continue as

Computer Technician and Electronic Technician till regularly

selected employees join duty. On 26.02.2020, when the writ

petition came up for admission, this Court passed the following

interim order:

"After perusing the record this Court is satisfied that the respondents be directed not to discontinue the petitioners for two weeks from today. In the meanwhile counter to be placed on record."

According to the petitioners, in the light of the said interim

order, they were entitled to be re-engaged, and the failure on

the part of the University in not re-engaging them amounts to

contempt of Court. The petitioners accordingly instituted

Contempt Case (Civil) No.668 of 2020 and the said proceedings

is pending. The University entered appearance in the contempt

proceedings and filed an affidavit on its behalf stating that the

term of the contract engagement of the petitioners expired

long before the interim order and that they were disengaged

before the said order.

Writ Appeal No.1134 of 2022

4. In the meanwhile, the University filed a counter

affidavit in the writ petition and moved a petition for getting

the interim order vacated. When the matter came up for

orders, though the learned Single Judge heard the matter in

full, adjourned the matter thereafter sine die awaiting the

decision in the contempt case. As noted, it is aggrieved by the

order passed by the learned Single Judge in this regard that this

appeal is preferred by respondents 1 to 4.

5. The learned Standing Counsel for the

University submitted that the view taken by the learned Single

Judge in the matter of passing the impugned order that the writ

petition cannot be disposed of when the contempt case

preferred in the matter is pending, is unsustainable in law. The

learned counsel elaborated the said submission pointing out

that the scope of a contempt proceedings is very different from

that of the pending main case which is yet to be heard and

disposed of. It was also pointed out that the respondents in a

pending case are at a disadvantage, if they are called upon to

meet the merits of the claim in a contempt proceedings at the

risk of being punished. According to the learned Standing

Counsel, it was therefore, obligatory on the part of the learned Writ Appeal No.1134 of 2022

Single Judge to decide the writ petition or at least the

application preferred by the University to vacate the interim

order in respect of which the contempt proceedings are

pending. He has relied on the decision of the Apex Court in

State of Jammu and Kashmir v. Mohd. Yaqoob Khan,

1992 KHC 1041, in support of the said proposition. According to

the learned Standing Counsel, the impugned interim order, in

the circumstances, is liable to be set aside on that sole ground.

6. Per contra, the learned counsel for the

petitioners submitted that the order impugned in the appeal

being a procedural one, the writ appeal is not maintainable. He

has relied on the Larger Bench decision of this Court in

K.S.Das v. State of Kerala, 1992 KHC 366 and the decision

of this Court in Thomas P.T. v. Bijo Thomas, 2021 (6) KHC

279, in support of the said objection as to the maintainability of

the writ appeal.

7. Mohd. Yaqoob Khan is a case where the High

Court of Jammu and Kashmir directed implementation of an ad

interim order passed in a writ petition, in the contempt case

instituted alleging wilful disobedience of the same. The

contention raised was that so long as the application on which Writ Appeal No.1134 of 2022

the ad interim order was passed was not finally disposed of,

further proceedings in the contempt case was misconceived

and no orders should have been passed therein. Paragraphs 5

to 7 of the judgment read thus:

"5. We find great force in the argument of Mr. Salve that so long the stay matter in the writ petition was not finally disposed of, the further proceeding in the contempt case was itself misconceived and no orders therein should have been passed. Mr. Bhandare appearing on behalf of the writ petitioner, who is respondent before us, has strenuously contended that the orders passed in the contempt proceedings should be treated to have disposed of the stay matter in the writ petition also. He laid great emphasis on the fact that the counsel for the respondents in the writ petition had been heard before the orders were issued. He invited our attention to the merits of the claim. It is argued that the order dated March 19, 1990 must, in the circumstances, be treated to have become final and, therefore, binding on the State and the High Court was right in issuing the further direction by way of implementation of earlier order.

We do not agree. The scope of a contempt proceeding is very different from that of the pending main case yet to be heard and disposed of (in future). Besides, the respondents in a pending case are at a disadvantage if they are called upon to meet the merits of the claim in a contempt proceeding at the risk of being punished. It is, therefore, not right to suggest that it should be assumed that the initial order of stay got confirmed by the subsequent orders passed in the contempt matter.

6. We, therefore, hold that the High Court should have first taken up the stay matter without any threat to the Writ Appeal No.1134 of 2022

respondents in the writ case of being punished for contempt. Only after disposing it of, the other case should have been taken up. It is further significant to note that the respondents before the High Court were raising a serious objection disputing the claim of the writ petitioner. Therefore, an order in the nature of mandatory direction could not have been justified unless the court was in a position to consider the objections and record a finding, prima facie in nature, in favour of the writ petitioner. Besides challenging the claim on merits, the respondent was entitled to raise a plea of non- maintainability of a writ application filed for the purpose of executing a decree. It appears that at an earlier stage the decree in question was actually put in execution when the parties are said to have entered into a compromise. According to the case of the State the entire liability under the decree (read with the compromise) has already been discharged. The dispute, therefore, will be covered by Section 47 of the Code of Civil Procedure. It will be a serious question to consider whether in these circumstances the writ petitioner was entitled to maintain his application under Article 226 of the Constitution at all. We do not want to decide any of these controversies between the parties at this stage except holding that the orders passed in the contempt proceeding were not justified, being premature, and must, therefore, be entirely ignored. The High Court should first take up the stay matter in the writ case, and dispose it of by an appropriate order. Only thereafter it shall proceed to consider whether the State and its authorities could be accused of being guilty of having committed contempt of court.

7. Accordingly the appeal is allowed and the impugned judgment is set aside. The High Court may now proceed with the case in accordance with the observations made above. The respondent No.1 shall pay the cost of this appeal to the appellant - state which are quantified at Writ Appeal No.1134 of 2022

Rs.5,000."

In the light of the law laid down by the Apex Court in the above

case, we have no doubt in our minds that the learned Single

Judge ought to have decided the writ petition or at least

considered the application for vacating the interim order,

especially since respondents 1 to 4 were called upon to meet

the merits of the matter in a contempt proceedings at the risk

of being punished.

8. Let us now consider the sustainability or

otherwise of the objection that has been raised by the learned

counsel for the petitioners as to the maintainability of the writ

appeal. As pointed out by the learned counsel for the

petitioners, the scope of an appeal under Section 5 of the

Kerala High Court Act, 1958 was explained by a Larger Bench of

this Court in K.S.Das. The majority opinion in the said case is

as follows:

"Conclusion: (1) The word 'order' in S.5(i) of the Kerala High Court Act, 1958 includes, apart from other orders, orders passed by the High Court in Miscellaneous Petitions filed in the Writ Petitions provided the orders are to be in force pending the Writ Petition. An appeal would lie against such orders only if the orders substantially affect or touch upon the substantial rights or liabilities of the parties or are matters of moment and cause Substantial prejudice to the parties. The Writ Appeal No.1134 of 2022

nature of the 'order' appealable belongs to the category of 'intermediate orders' referred to by the Supreme Court in Madhu Limaye's case, AIR 1978 SC47. The word 'order' is not confined to 'final order' which disposes of the Writ Petition. The 'orders' should not. However, be ad-interim orders in force pending the Miscellaneous Petition or orders merely of a procedural nature.

(2) But this does not mean that the Division Bench hearing the appeal against such 'orders' will have to admit the appeal or have to modify the impugned order or set it aside the same in every case. There is difference between the question whether an appeal lies to a Division Bench and as to the scope of interference. Normally, discretionary orders are not interfered with unless the impugned orders are without jurisdiction, contrary to law, or are perverse, and they also cause serious prejudice to the parties in such a manner that it might be difficult to restore the status quo ante or grant adequate compensation. The idea is to provide an internal remedy in such cases without compelling the parties to go all the way to the Supreme Court under Art. 136 of the Constitution of India or increase the burden of that court unnecessarily, (3) It will, however, be incumbent upon the appellant to serve the counsel who has appeared before the Single Judge for the opposite party (unless of course the counsel's authority has been revoked or he is dead) and when such appeals against orders come up in appeal for admission before the Division Bench, it will be open to the Bench to treat such service as mentioned above as sufficient service on the parties (unless the court, in the circumstances of the case, thinks otherwise) and to dispose of the appeal either at the stage of admission or soon thereafter, after considering the facts of the case or subsequent events. This would generally obviate admission of the Writ Appeals, issue of notice and the Writ Appeal No.1134 of 2022

passing of interim orders pending Writ Appeals."

As evident from the extracted opinion, the view that was

upheld in the said case was that even though an appeal could

be filed against an interlocutory order passed in a writ petition,

in order to be qualified for challenge in an appeal, the order

shall be either substantially affecting or touching upon the

substantial rights or liabilities of the parties or which are

matters of moment and cause substantial prejudice to the

parties. It was also clarified by the Larger Bench in the said

case that such orders should not, however, be ad-interim

orders, or orders merely of a procedural nature.

9. Insofar as the respondents are now called upon

to meet the merits of the matter in a contempt proceedings at

the risk of being punished, it cannot be said that the impugned

order is one which does not substantially affect or touch upon

the substantial rights of the respondents. Similarly, an order of

the instant nature cannot be said to be purely procedural, like

an order directing listing of a matter for hearing on a particular

day or an order calling for a counter affidavit or rejoinder which

are orders intended to facilitate the progress of the case and

which does not affect the vital and substantive rights of parties. Writ Appeal No.1134 of 2022

That apart, as stated above, the impugned order is

unsustainable as well, inasmuch as it runs counter to the

dictum in Mohd. Yaqoob Khan. If orders of this nature are

passed especially against public bodies manned by individuals,

the same would only enable litigants to get illegitimate and

undeserving benefits at the expense of the public.

In the light of the discussion aforesaid, the appeal is

allowed and the impugned order is set aside.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

C.S.SUDHA, JUDGE.

ds 24.08.2022 Writ Appeal No.1134 of 2022

APPENDIX

PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE AFFIDAVIT FILED BY THE REGISTRAR OF THE UNIVERSITY.

Annexure A2 TRUE COPY OF THE AFFIDAVIT FILED BY THE DEPUTY REGISTRAR OF THE UNIVERSITY.