Akhilesh Kumar S/O Sh. Nand Singh vs State Of Rajashan
2021 Latest Caselaw 2019 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

             S.B. Civil Contempt Petition No.454/2020

Akhilesh Kumar S/o Sh. Nand Singh
                                                                   ----Petitioner
                                   Versus
State Of Rajashan & Ors.
                                                                ----Respondents

For Petitioner(s) : Mr. Rajeev Surana, Adv. with Mr. Hemant Taylor, Adv.

Ms. Prabuddha Sharma, Adv.

Mr. Sankalp Sogani, Adv.

For Respondent(s)          :   Mr. C. L. Saini, AAG.



         HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

                                    Order

24/02/2021

This contempt petition has been filed for willful disobedience

of order passed by this Court on 23.03.2020.

This Court while allowing the writ petition, gave directions to

screen and regularize the petitioner on the post of Class IV

employee after he completed 10 years of service and to further

grant him regular pay scale from the date of regularization.

This Court also found petitioner to be entitled to grant pay

scale on notional basis and actual arrears were to be paid only for

a period of three years.

The petitioner is said to have submitted a representation on

06.05.2020 before the respondents-contemnors for compliance of

the order dated 23.03.2020 and thereafter he served notices of

contempt on 11.06.2020 and same were received by the

respondents-contemnors on 15.06.2020.

(2 of 6) [CCP-454/2020]

The contempt petition was filed before this Court on

30.06.2020 and notices were issued on 14.08.2020.

Mr. C.L. Saini, learned Addl. Advocate General has appeared

and submitted that reply to the contempt petition has been filed.

Learned Addl. Advocate General submitted that against the

order dated 23.03.2020 passed by the Single Bench, D.B. Special

Appeal (Writ) No.577/2020 has been filed before the Division

Bench along with the stay application with prayer to stay the

operation of the order dated 23.03.2020, and till decision, in the

stay application by the Division Bench, the contempt petition filed

by the petitioner may not be heard.

Learned Addl. Advocate General submitted that such

submission is made by the respondents on account of judgment

passed by Hon'ble Apex Court in the case of Modern Food

Industries (India) Ltd. & Anr. Vs. Sachidanand Dass & Anr.,

1995 Supp (4) SCC 465.

This Court on 22.02.2021 had given time to learned Addl.

Advocate General to make submissions in respect of continuation

of contempt proceeding and objections of the respondents-

contemnors was also be considered about continuation of

contempt proceedings.

Learned counsel for the petitioner Mr. Rajeev Surana

submitted that the respondents-contemnors are willfully

disobeying the order passed by this Court and filing of special

appeal cannot be a ground to defer the proceedings in the present

contempt petition.

Learned counsel for the petitioner submitted that the special

appeal by the State was filed on 31.07.2020 and when the matter

was listed before the Division Bench on 18.01.2021, request was

(3 of 6) [CCP-454/2020]

made on behalf of the State, to adjourn the matter, and as such,

the matter has been deferred to 26.03.2021.

Learned counsel for the petitioner submitted that filing of an

appeal does not automatically result into postponement of

contempt proceedings.

Learned counsel for the petitioner further submitted that the

State at the first instance did not file the appeal within limitation

and thereafter the matter is not pursued before the Division Bench

and as such, the intention of the respondents-contemnors is

suffering from malafide and they intend to avoid compliance of the

order passed by this Court.

Learned counsel for the petitioner also submitted that the

Apex Court in the case of Dr. H. Phunindre Singh & Ors. Vs.

K.K. Sethi & Anr., (1998) 8 SCC 640, has also laid down that if

the contempt petition is pending, the same should be continued

and it should not be deferred only for the reason that special

appeal is pending.

Learned counsel for the petitioner also refers to the order

passed by the High Court of Jharkhand in the case of Awadesh

Kumar Vs. State of Jharkhand & Ors. (Cont. Case (C) No.

935 of 2004, decided on 10.05.2005.

Learned counsel for the petitioner on the strength of the said

judgment submitted that if the letters patent appeal is filed after

delay and no steps are taken for listing the letter patent appeal or

even petition for condonation of delay, and as such, the order

passed in the writ petition, cannot be deferred and the same is

required to be implemented.

Learned Addl. Advocate General-Mr. C.L. Saini submitted

that the Division Bench is ceased with the matter and since reply

(4 of 6) [CCP-454/2020]

to the stay application filed before the Division Bench, the

petitioner has also prayed for initiating proceedings under Section

340 Cr.P.C. for filing false affidavit against the Officer In-charge.

Learned Addl. Advocate General submitted that due to

COVID-19, the procedure could not be adopted of filing appeal and

pursuing the same, and as such, the matter is still subjudice

before the Division Bench.

I have heard the submissions made by learned counsel for

both the parties.

This Court finds that the order passed by this Court on

23.03.2020 had given directions to the respondents-contemnors

to screen the petitioner and to consider him for the post of Class

IV employee after completing his 10 years of service and then to

grant him regular pay scale.

This Court finds that the order dated 23.03.2020 has not

been complied with and the respondents-contemnors only on

account of filing special appeal, prays before this Court that the

case should be deferred till its decision or stay application is

decided by the Division Bench.

The submission of learned Addl. Advocate General that the

Apex Court in the case of Modern Food Industries (India) Ltd.

& Anr. Vs. Sachidanand Dass & Anr.) (supra) has laid down

the procedure that if disobedience is complained of an order and

the same is appealed, it will be appropriate to take up for

consideration the prayer for stay either earlier or at least

simultaneously with complaint of contempt.

The submission of learned Addl. Advocate General is that

compliance of the order by the respondents-contemnors would

cause serious prejudice to the respondents-contemnors and as

(5 of 6) [CCP-454/2020]

such, under threat of contempt no direction may be passed as has

been said by the Apex Court.

I have gone through the order passed by the Apex Court in

the case of Modern Food Industries (India) Ltd. & Anr. Vs.

Sachidanand Dass & Anr.) (supra) and the Apex Court while

passing the order has also said that mere filing of an appeal and

application for stay, do not themselves absolve the appellants

from obeying the order under appeal and any compliance with the

Single Judge order will be subject to final result of the appeal.

This Court finds that the filing of an appeal is right to a

litigant and he/she can always pursue the legal remedy.

This Court is not inclined to accept the submission of learned

Addl. Advocate General that merely filing of an appeal would be a

sufficient reason to defer the contempt proceedings. The Courts

while passing orders in the writ petition need to see that if order is

not stayed or set aside by the Higher Court, the parties to the

litigation, need to comply with the order.

This Court finds that invariably when the contempt petitions

are filed, stand is taken by the State Authorities that they have

preferred appeal before the Division Bench and as such, Courts

should not proceed with the matter. Merely by filing an appeal

before the Division Bench, the Single Bench cannot be made

defunct or placed in a situation, where they cannot see the

implementation of the order passed by the Court.

This Court further finds that the order which is challenged

before the Division Bench is also by way of an appeal along with

an application filed under Section 5 of the Limitation Act for

condonation of delay. The respondent-State Authorities are within

their right to pursue their matter before the Division Bench. The

(6 of 6) [CCP-454/2020]

Authorities on one hand file the special appeal within their own

right, however, no persuasion is done to get the matter

adjudicated either on stay application or for any other order. This

kind of stand would not result into a situation, where the Courts

cannot proceed in the contempt proceedings at all.

This Court overrules the objection of learned Addl. Advocate

General for not proceeding with the contempt petition.

This Court finds that the order of this Court has not been

complied with and as such, this Court grants further period of

three weeks to the respondents-contemnors to comply with the

order.

The order passed by this Court may be complied with on or

before 22.03.2021. In case, the order is not complied with, the

respondents-contemnors will be personally present in the Court on

the next date.

List this case on 22.03.2021.

A copy of this order be sent by the Registrar (Judicial) to the

respondents-contemnors.

Learned Addl. Advocate General will also inform the

respondent No.1 about the order passed by this Court.

(ASHOK KUMAR GAUR),J

Ramesh Vaishnav/Parul Sharma

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