Kerala High Court
P. M. Ali vs A.P.M. Mohammed Hanish Ias on 20 May, 2022
Con.Case(C) No.753/2022 1 / 18
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Friday, the 20th day of May 2022 / 30th Vaisakha, 1944
CONTEMPT CASE(C) NO. 753 OF 2022(S) IN WP(C) 23159/2018
PETITIONER/PETITIONER NO.1 IN WPC:
P.M. ALI, S/O.MUHAMMED, AGED 49 YEARS,
PADIKKAMANNIL (H), (P.T.A. PRESIDENT), G.H.S.S. KANNATTOPUDAM,
PALAPPILLY P.O., THRISSUR DISTRICT- 680 304.
BY ADVS. M/S. SAJITH KUMAR V., VIVEK A.V., GODWIN JOSEPH, REMYA VARMA
N.K.
RESPONDENTS/RESPONDENTS 1 AND 2 IN WPC:
1. A.P.M. MOHAMMED HANISH IAS, WORKING AS PRINCIPAL SECRETARY,
DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. JEEVAN BABU IAS, WORKING AS THE DIRECTOR OF PUBLIC INSTRUCTIONS
(PRESENTLY DIRECTOR OF GENERAL EDUCATION), THIRUVANANTHAPURAM- 695
001.
BY SENIOR GOVERNMENT PLEADER
This Contempt of court case (civil) having come up for orders on
20.05.2022, the court on the same day passed the following:
P.T.O.
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S. MANIKUMAR, CJ
&
SHAJI P. CHALY, J
---------------------------------------------------
Cont.Case(C). No. 753 of 2022 (S)
----------------------------------------------------
Dated this the 20th day of May, 2022
ORDER
S. Manikumar, CJ
Alleging disobedience of the directions contained in the
judgment in W.P(C).No.23159/2018 dated 10.8.2021, instant
contempt petition is filed.
2. While disposing of the writ petition, this Court issued the
following directions:
"22. Thus on a close scrutiny and analysis of the provisions of
Kerala Education Rules, 1959 discussed above and Exhibit P1
Government Order and the provisions of the Kerala Education
(Amendment) Rules, 2003, the Government intended
sanctioning of HSA(English) w.e.f. the academic year 2002-2003
in order to achieve the objectives. Even though contention was
advanced that the number of divisions has also to be taken into
account for sanctioning of post of HSA(English), we are unable
to agree with the same in view of the specific Government
Orders and amendment to the Rules. What is important to be
looked into in the context, in our considered view, is the
language employed in the amendment Rules as well as the
amended provisions of rule 6I, which makes it imperative, clear
and patent that, notwithstanding anything contained in
Chapter XXIII, rule 6I has to be implemented, and as stated
earlier the note only enables the State Government to issue
future general orders in regard to the sanctioning of
HSA(English), which in our view may not have any bearing to
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rule 6D as it remains now to canvass and contend that the
Government is at liberty to continue the system of teaching
English language using the core subject teachers. It is also
quite disturbing to note that the Government have not cared
to implement its own order i.e; Exhibit P1, in the phased
manner intended from the academic year 2002- 2003 utilising
the vacancies occurred in the manner prescribed in the said
order. Therefore we are convinced that the intention of the
State Government, though late, is to be translated at the
earliest, also taking into account and bearing in mind that the
amendment of the rules were made w.e.f from 07-01-2002, so
as to achieve the object and purpose of the amendments
made to the Kerala Education Rules 1959, deliberated above.
Resultantly, petitioners are entitled to succeed in the
writ petition. Accordingly the writ petition would stand
allowed and there would be a direction to the State
Government and the Director of Public Instructions to do the
necessary at the earliest in order to create and formulate the
cadre of HSA (English) on and w.e.f. the academic year 2021-
2022 onwards."
3. On this day, when the matter came up for hearing, by
producing copy of the order of the Hon'ble Supreme Court in
Special Leave to Appeal (C) No. 15856/2021 dated 2.5.2022,
between State of Kerala & Another and P.M. Ali & Others, Mr. V.
Tekchand, learned Senior Government Pleader submitted that
being aggrieved by judgment in W.P(C).No.23159/2018 dated
10.8.2021, SLP has been filed and that has been adjourned for
two weeks.
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4. It is trite law to say that in the absence of any interim
order by the Hon'ble Apex Court, directions issued by this Court
in W.P(C).No.23159/2018 dated 10.8.2021, have to be
implemented.
5. Even if an appeal is filed, unless there is an order of stay,
orders passed by the Court has to be implemented. On the above
aspect, it is useful to refer to few decisions:
(i) In S.P.Agarwal Vs. R.R.Upadhya, reported in 1978 Crl LJ 789,
the contemnors took a defence that their counsel advised them
to file an appeal to the Hon'ble Supreme Court, against the
order of the High Court, directing payment of salary, and not to
make payment. Addressing the defence, a Hon'ble Division
Bench of the Allahabad High Court, at Paragraph Nos.20 and 21,
held thus:-
"20. The contemnors have further raised a plea in their defence
that their counsel advised them to file appeal before the
Supreme Court against the order dated 19th May, 1977 and not
to make payment of salary to S.P. Agarwal, instead to deposit
the amount payable to him in the Supreme Court. As noted
earlier an application under Art. 136 of the Constitution was
filed before the Supreme Court on 5th June, 1977, but that
appeal was neither heard nor any orders were passed by the
Supreme Court in the absence of any orders passed by the
Supreme Court staying the direction contained in the order of
this Court dated 19th May, 1977, the contemnors had no
justification to disregard that order. A mere filing of the appeal
under Art 136 of the Constitution before the Supreme Court
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against any order of this Court cannot be a justification for
disobedience or non-compliance of the orders of this Court. Of
course the position would be different if the Supreme Court
takes cognizance of the appeal and passes any positive order of
stay. There is no dispute that the Supreme Court had not taken
cognizance of the appeal filed under Art. 136 of the
Constitution and no orders had been passed staying the
operation of the order of this Court.
21. There was no justification for the contemnors to deposit the
salary in the Supreme Court. There is no opinion in writing by
any counsel advising the Bank or the Administrator not to pay
salary to S.P. Agarwal or to deposit the same before the
Supreme Court along with the memo of appeal filed under Art.
136 of the Constitution. The contemnors' plea for taking shelter
behind legal advice is without any foundation. But even
assuming that any such advice was given to the contemnors that
would not be a valid ground for the disobedience of the orders
of this Court. If a counsel advised a litigant not to obey the
orders of a Court of law such an ill advice of counsel cannot be a
valid defence in contempt proceedings. 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 has no justification to flout the order of the
Court. It is noteworthy that both the officers acted contrary to
the legal advice as tendered to them by the District Government
Counsel, Bijnor, as well as by the Bank's counsel Sri Vijai
Bahuguna and in spite of their advice they did not pay salary to
S.P. Agarwal as required by this Court's order dated 20th Oct.,
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1976. Their conduct makes it amply clear that the plea of legal
advice for not complying with the order of this court dated 19th
May, 1977 appears to be an afterthought raised for the purpose
of creating a defence in these proceedings."
(ii) On the facts and circumstances of the case, taking note of
the decisions of the Hon'ble Supreme Court in Baradakanta
Mishra v. Bhimsen Dixit, reported in 1973 (1) SCC 446 = AIR
1972 SC 2466, a Hon'ble Division Bench of Himachal Pradesh in
Hans Raj Dhir v. State of Himachal Pradesh and others,
reported in 1985 Cri LJ 1030, at Paragraph No.10, observed
thus:-
"10. Before parting with the matter, we regard it to be
expedient to observe that an impression has been left on our
minds that the concerned authorities failed to reinstate and to
pay arrears of salary to the petitioner soon after the decision of
the learned single Judge, even though at the material time no
stay order was operative; as they appeared to be entertaining
the belief that since a Letters Patent Appeal was preferred, the
matter had once again become sub-judice and that, therefore,
there was no legal obligation to grant the benefits accruing due
to the petitioner pursuant to the decision of the learned single
Judge. This belief, which appears to have been entertained by
the concerned authorities, is wholly unwarranted. Once a case is
decided, it is the bounden duty of the State and its subordinates
to implement, with the utmost expedition, the said decision. In a
Government which is ruled by law, there must be complete
awareness to carry out faithfully and honestly the decisions
rendered by courts of law after effective adjudication. Then
only will private individuals, organisations and institutions learn
to respect the decisions of courts. In absence of such attitude on
the part of all concerned, chaotic conditions might arise and the
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functions assigned to the courts of law under the Constitution
might be rendered a futile exercise. It requires to be
emphasised, in this connection, that mere preferment of an
appeal does not automatically operate as a stay of the decision
under appeal and that 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. The decision of the Supreme
Court in Baradakanta Mishra v. Bhimsen Dixit, (1973) 1 SCC
446 : AIR 1972 SC 2466 : (1973 Cri LJ 19), places the matter
beyond dispute, doubt or debate as regards this aspect."
It is also worthwhile to consider as to how the Hon'ble Supreme
Court dealt with the abovesaid defence taken by the alleged
contemnor in Baradakanta Mishra's case was dealt with, as
extracted in Hans Raj Dhir's case,
"11. In Baradakanta Mishra's case, the Additional Assistant
Commissioner of Hindu Religious Endowments had taken an
action under S. 27 of the Orissa Hindu Religious Endowments
Act, 1952 (hereinafter referred to as "the Act") and appointed
an interim Trustee of the deities. The person affected lodged
objections under S. 41 of the Act but the objections were
rejected without holding any inquiry. Against the said decision,
the objector filed a Revision before the Commissioner of Hindu
Religious Endowments, who was a member of the Superior
Judicial Service of the State and was at one time an officiating
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District Judge. While the Revision application was pending
before the Commissioner, the High Court of Orissa, in a
different case which was pending before it, held that the
Assistant Commissioner had no power to appoint an interim
Trustee under S. 27 of the Act until he had held an inquiry under
S. 41 and found that there was no hereditary Trustee of the
religious institution. At the hearing of the Revision before the
Commissioner, the aforesaid decision of the Orissa High Court
was cited by the objector in support of his case. The
Commissioner made the following observations in the said
context:
"......The decision in the High Court on Bantala case (AIR 1970
Orissa 141) would not be applicable to this instance. Further
against the order, we have moved the Supreme Court and as
such, the matter can be safely deemed to be sub judice."
12. The decision of the Commissioner was challenged in a writ
petition before the Orissa High Court. The High Court issued a
notice to the Commissioner taking exception to the
observations made in his order that since the decision of the
High Court was under challenge, before the Supreme Court, the
matter could be regarded as sub-judice.
The plea taken up by the Commissioner, who appeared before
the High Court in response to the notice, was that under the
Constitution the decision of the Supreme Court was the law of
the land. He, therefore, bona fide entertained the opinion that
when the matter was under appeal or otherwise before the
Supreme Court, the point of law became sub-judice and only the
decision of the Supreme Court in the matter would be binding
on the subordinate authorities. The Commissioner further
pleaded that the proceedings before him were of administrative
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nature and that the act of not following the decision of the High
Court in such a proceeding would not amount to contempt of
court. The High Court rejected the plea and held that the
conduct of the Commissioner, far from being bona fide, was
clearly mala fide and that he intentionally avoided to follow that
decision of the High Court by advancing grounds which were
most inappropriate. The High Court, therefore, found the
Commissioner guilty of contempt of court and admonished him
in open court and directed him to pay Rs. 300/- as costs of the
proceedings. The Commissioner preferred, an appeal against
the said decision to the Supreme Court. The Supreme Court, in
the course of its decision, observed that the Commissioner has
had 23 years judicial experience and that he could not have
legitimately entertained the belief that as soon as a petition for
a certificate to appeal to the Supreme Court was filed in the
High Court against its decision the binding character of the
decision disappeared. The Supreme Court, while upholding the
finding of the High Court that the appellant had deliberately
avoided to follow the decision by giving wrong and illegitimate
reasons and that his conduct was clearly mala fide, made the
following pertinent observations:
"Under Art. 227 of the Constitution, the High Court is vested
with the power of superintendence over the courts and
tribunals in the State. Acting as a quasi judicial authority under
the Orissa Hindu Religious Endowments. Act, the appellant was
subject to the superintendence of the High Court.
Accordingly the decisions of the High Court were binding on
him. He could not get away from them by adducing factually
wrong and illegitimate reasons..................... The conduct of
the appellant in not following the previous decision of the High
Court is calculated to create confusion in the administration of
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law. It will undermine respect for law laid down by the High
Court and impair the constitutional authority of the High Court.
His conduct is therefore comprehended by the principles
underlying the law of contempt. The analogy of the inferior
court's disobedience to the specific order of a superior court
also suggests that his conduct falls within the purview of the
law of contempt Just as the disobedience to a specific order of
the Court undermines the authority and dignity of the court in a
particular case, similarly any deliberate and mala fide conduct of
not following the law laid down in the previous decision
undermines the constitutional authority and respect of the High
Court. Indeed, while the former conduct has repercussions on an
individual case and on a limited number of persons, the latter
conduct has a much wider and more disastrous impact. It is
calculated not only to undermine the constitutional authority
and respect of the High Court generally, but is also likely to
subvert the Rule of law and engender harassing uncertainty and
confusion in the administration of law."
13. On this view of the matter, the Supreme Court dismissed the
appeal preferred by the Commissioner."
At Paragraph No.15 in Hans Raj Dhir's case, the Hon'ble Division
Bench, further observed thus:-
15. Be it stated that in that case, even though the Commissioner
had declined to follow the decision of the High Court rendered
in a different case on the ground that an appeal having been
preferred against the said decision its binding character had
disappeared, the contempt jurisdiction was invoked and
exercised. When there is disobedience to a specific order of the
court whether on account of sheer neglect or refusal to
implement the order on the ground that an appeal is preferred
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or intended to be preferred, the contempt would take still a
more aggravated form and will be liable to be visited with a
higher penalty."
(iii) In Dr.Sajad Majid v. Dr.Syed Zahoor Ahmed and another,
reported in 1989 Crl LJ 2065, a Hon'ble Division Bench of the
Jammu and Kashmir High Court has considered that in a
contempt petition, defence raised was that "in a case an order is
passed by the Court which is open to an appeal and the party
concerned again whom the proceedings for contempt are
brought, has availed of the remedy, can be a case be considered
for contempt or issuance of a rule against the wrong doer? In
the given case, SLP was preferred.
A Hon'ble Division Bench of the Jammu and Kashmir High Court,
in Dr.Sajad Majid's case reported in 1989 Cri LJ 2065 at
Paragraph Nos.8 to 10, held thus:-
"8. It is not disputed before us that SLP against the Court
direction has been filed 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. Noncompliance of the order during the pendency of
appeal without stay order appears to us an attempt by a party to
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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 stayed 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
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proceedings will be entertained against such party for
noncompliance. 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
pending. 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 has no
justification to flout the order of the Court. Thus, a mere filing
of the appeal under Art. 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."
9. 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
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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."
10. Above all, the Supreme Court in identical situation in (1973)
1 SCC 446 : AIR 1972 SC 2466 : (1973 Cri LJ 19), has laid the
following rule:--
"A subordinate Court or Tribunal refusing to follow a High Court
decision where a petition for leave to appeal to Supreme Court
against that High Court decision was pending, held amounts to
deliberate disobedience and wilful disregard of the High Court
and is contempt of Court." At paragraph No.13 the Hon'ble
Division Bench, answered thus:-
"13. 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."
(iv) In Collector of Customs, Bombay v. Krishna Sales (P) Ltd.,
reported in 1994 Supp. 3 SCC 73, the Hon'ble Supreme Court,
observed thus:-
"6. According to the said para 4, the goods will not be released
even where the party succeeds in cases where the Customs
authorities decide to go in appeal before the Tribunal or the
Supreme Court. They will consider the issuance of such
certificate only after the decision of the Tribunal or the
Supreme Court, as the case may be. The learned counsel for the
respondent characterises the said direction as arbitrary and
contrary to law. We see the force in his submission. If the
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authorities are of the opinion that the goods ought not to be
released pending the appeal, the straightforward course for
them is to obtain an order of stay or other appropriate direction
from the Tribunal or the Supreme Court, as the case may be.
Without obtaining such an order they cannot refuse to
implement the order under appeal. As is well-known, mere filing
of an appeal does not operate as a stay or suspension of the
order appealed against. Moreover, such detention is likely to
create several complications relating to the demurrage charges
besides the possible deterioration of the machinery and goods.
We hope and trust that the Collector of Customs, Bombay shall
appropriately revise the said public notice in the light of the
observations made herein. If he does not do so, there is a
likelihood of the Customs authorities being themselves made
liable for demurrage charges in appropriate cases."
(v) On the plea as to whether an apology should be accepted,
after considering a decision of the Hon'ble Supreme Court in
Mulk Raj v. State of Punjab, reported in 1972 (3) SCC 839 = AIR
1972 SC 1179, at Paragraph Nos.24, 25, 27 and 28, held thus:-
"24. During the course of hearing of contempt matters the
contemnors paid the salary to S.P. Agarwal and they tendered
unqualified apology. Learned Counsel for the contemner urged
that since the payment of salary was made on 7th Nov., 1977.
and as the contemners have tendered unqualified apology this
Court should take a lenient view and no action should be taken
against them. It is true that apology is an act of contrition. When
a contemner tenders apology as an act of contrition the Court
must weigh that apology and in awarding the punishment the
Court must consider the apology tendered by the contemner. If
the apology is found to be an act of contrition, no action need
be taken but if the apology is used as a weapon to escape the
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consequences of contemners' action, the apology must be
rejected. In Mulk Raj v. State of Punjab. ((1972) 3 SCC 839 : AIR
1972 SC 1197 : (1972 Cri LJ 754) the Supreme Court observed
(at p. 755 of Cri LJ):-- "Apology is an act of contrition. Unless the
apology is offered at the earliest opportunity and in good grace
the apology is shorn of penitence and hence is liable to be
rejected. If apology is offered at a time when the contemner
finds that the Court is going to impose punishment it ceases to
be an apology and becomes an act of a cringing coward."
25. In view of the above observation of the Hon'ble Supreme
Court, we think it necessary to consider the question of
acceptance of apology.
27. In his counter-affidavit filed in contempt petition No. 12389
of 1977 R.R. Upadhya had no doubt expressed regret and
tendered apology and in the counter affidavit filed in Contempt
Petition No. 23 of 1977 R.R. Upadhya while defending his action
has also expressed regret and tendered apology in his affidavit
which was filed in July, 1977. From a careful scrutiny of the
contemnors' conduct and their wilful disobedience of the orders
of this Court on one pretext or the other it is crystal clear that
steps were taken by them for the payment of salary to S.P.
Agarwal as late as on 7- 11-1977 when it had become apparent
that the defence taken by them was unacceptable and their
position had become precarious. As discussed earlier, both the
contemnors have taken wrong pleas and have perjured
themselves on more than one occasion which shows their
attitude of mind. They have not been candid in their conduct or
truthful in their testimony. Having regard to these facts and
circumstances we are of the opinion that the apology tendered
by them is not an act of contrition, instead they have used it as a
weapon to escape the consequences of the present
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proceedings. In the circumstances, we do not consider it proper
to accept the apology tendered.
28. We are therefore of the opinion that R.R. Upadhya and S.N.
Tewari both are guilty of wilful disobedience of the orders of
this Court and they are further guilty of making reckless
allegations against an officer of this Court which has a tendency
of lowering down the prestige of this Court. We, therefore, hold
that the contemnors are guilty of contempt of this Court for
which they deserve punishment. Both the contemnors are
therefore sentenced to pay a fine of Rs. 1000/- (Rupees one
thousand) each payable within six weeks from today, or in
default, to undergo one month's simple imprisonment. The
contemnors shall also pay costs of these proceedings to S.P.
Agarwal which we assess at Rs. 300/-"
6. In view of the pronouncement of law, this court is
inclined to adjourn the contempt petition by four weeks.
Sd/-
S. Manikumar,
Chief Justice
Sd/-
Shaji P. Chaly,
Judge
sou.
20-05-2022 /True Copy/ Assistant Registrar
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APPENDIX OF CON.CASE(C) 753/2022
EXHIBIT P1 A TRUE COPY OF THE G.O.(MS)NO.11/2002/G.EDN DATED
07/01/2022 ISSUED BY THE 1ST RESPONDENT.
