2 vs Committee Of Management
2021 Latest Caselaw 82 UK

          HIGH COURT OF UTTARAKHAND

                        AT NAINITAL

           ON THE 8TH DAY OF JANUARY, 2021

                              BEFORE:

     HON'BLE SHRI JUSTICE SHARAD KUMAR SHARMA


            Contempt Petition No.355 of 2019


BETWEEN:
      Dr. J.P. Gangwar (Male) aged about 44 years S/o Sri Beni Ram
      Gangwar R/o Village Kachnal Gazi, Kumaun Colony, Kashipur District
      Udham Singh Nagar at present C/o Dr. V.K. Joshi, 1229 Rani
      Padmawati Colony, Manpur Road Kashipur Udham Singh Nagar

                                                               ....Petitioner

      (By Sri Krishan Kumar Verma, Advocate)



AND:
1.    Vinay Kumar Chauhan, Secretary, Committee of Management,

      RLS Memorial Degree College, Afjalgarh Road Kishanpur, Jaspur

      District Udham Singh Nagar.

2.    Dr. Sushma Rani Principal RLS Memorial Degree College,

      Afjalgarh Road Kishanpur, Jaspur District Udham Singh Nagar

                                                        .....Respondents


      (By Sri Davesh Bishnoi, Advocate)



                           JUDGEMENT

The matter travelled, before the Division Bench of this Court, at the behest of the petitioner by filing a writ petition, being Writ Petition No.592 of 2018 (S/B) Dr. J.P.

Gangwar vs. Committee of Management, RLS Memorial Degree College, Jaspur; where in the writ petition, the challenge given by the petitioner, was to an order passed by the respondents of dispensation of his services, which on the subsequent proceedings, which were held before the Division Bench was found to be in violation of the legislative statutory, requirements contemplated under Section 31(2) of the Act of 1973. Consequently, while holding the termination order to be bad the Court passed the following order:-

"12. As none of the requirements of Section 31(2), or its provisos, have been complied with; and respondents 1 and 2 appear to have terminated the services of the petitioner on the premise that his appointment was a contractual appointment for a period of one year, though it is evident from a bare reading of the order of appointment dated 1.10.2015 that it was a regular appointment, the impugned proceedings, whereby the petitioner's services were terminated is set aside. The petitioner shall forthwith be reinstated into service and shall be extended all such benefits which he would have been entitled to, had he continued in service from 29.10.2018."

2. In its interpretation of para 12 of the judgment, I am of the opinion that it has clearly mentioned the following perspectives; which were directed to be complied:-

i. The dispensation of services of the petitioner was held to be in violation of Section 31(2) of the Act of 1973.

ii. The petitioner was directed to be reinstated forthwith, this direction of the reinstatement into the services, though has already been complied with belatedly by a order of 26.11.2020; but still this Court has got its reservation to observe that this compliance

of 26.11.2020; is not at the exclusive decision taken by the respondents, but it was rather in compliance of the order passed in the contempt proceedings.

iii. Third part of the order contained a direction that after the reinstatement into the services, the petitioner would be extended with "all such benefits" which he would be entitled to, provided he being permitted to continue in the service with effect from 29.10.2018.

3. However, the Division Bench of this Court by virtue of the subsequent observations made in para 13 and 14 of the judgment in its clear terms has reserved the rights of the respondents to take an action against the set of allegations, which was argued before the Division Bench for drawing the disciplinary proceedings against the petitioner.

4. The petitioner had filed this contempt petition on 12.06.2019, thereby, by pleadings alleging non compliance of the directions particularly, that as given in para 12, the complexity of which has already been dealt with above. The notices were issued to the respondents on 18.06.2019 and thereafter by an order of 19.11.2020 the respondents were granted time till 26.11.2020, to comply the order failing, which the respondents were directed to appear before this Court. In fact, even after passing of the order of 19.11.2020, no compliance was made and the adamancy on part of the respondent no.1 still persisted. Subsequently, the proceedings were taken up on 26.11.2020, before another Coordinate Bench of this Court. In furtherance of an order of 26.11.2020, the respondents had passed an

Order No.447-A/B.Ed/1/2020 dated 26.11.2020, whereby the Secretary, RLS Memorial Degree College, Jaspur, District Udham Singh Nagar; had passed an order of reinstatement of services of the petitioner only on 26.11.2020 in pursuance to the judgment of 30.04.2019.

5. I do not find any logic as to how, the respondents can sit over an order passed by the Division Bench, which stood affirmed with the dismissal of their SLP and later on, also with the dismissal of the review, the liberty, which they sought for before the Hon'ble Apex Court, for preferring review before the Division Bench of this Court. Even otherwise, also mere filing of an SLP or its pendency or a filing of review thereafter also cannot constitute as a reason to not to comply the judgments which legally survives in the eyes of law.

6. When the matter was taken up on 06.01.2021, the counsel for the petitioner, had argued that the alleged compliance of permitting the petitioner to be reinstated by an order of 26.11.2020, in fact, is not a strict compliance of the judgment as per the directions, which was given in para 12, which included the remittance of all the benefits payable, to the petitioner was not remitted to him, nor any reference of the same was even made in the order of compliance dated 26.11.2020 and hence, respondent was called upon to appear in person today.

7. The respondent no.1 Mr. Vinay Kumar Chauhan, Secretary, Committee of Management of R.L.S. Memorial

Degree College, is present in person before this Court. He through his counsel had placed a compliance affidavit on record and in the compliance affidavit he had made a reference of the tabulation of calculation made by the respondents, towards the amount due to be paid to the petitioner had been detailed therein and admittedly even as per the averments made in the tabulation given by the respondents, the salary payable to the petitioner was shown to be payable @ Rs.51,000/- per month, which was contended in response affidavit to be rather Rs.30,000/-by the respondents in the compliance affidavit. Apart from it, it is an admitted case that in addition to it, a sum of Rs.9,000/- per month was payable towards the house rent allowances, Rs.11,000/- was payable towards the car allowances and Rs. 1,000/- per month was payable towards mobile and internet allowances. The respondents had produced before this Court a cheque bearing Cheque No.268030 dated 07.01.2021 drawn on PNB, Jaspur Branch, in favour of the petitioner portraying a total disbursement of Rs.1,11,700/-. This amount is disputed by the petitioner on the ground that the direction given by the Division Bench, in its strict terms included the direction for reinstatement, with all benefits and when the Division Bench has directed the reinstatement, with all benefits it would obviously, it would be inclusive of the benefits, which had been admitted by the respondents, which was due to be paid towards the house rent allowance, car allowance and the mobile and internet expenditures.

8. It had been argued by Mr. Devesh Bishnoi, Advocate, for the respondents that as per the averments made in the compliance affidavit, the said amount has not

been included in the disbursement, which has been made by the cheque dated 07.01.2021; on the pretext that for the remittance of the house rent allowance, as well as car allowance, the petitioner would have to prove and make an assertion by way of a disclosure of fact, before the respondents himself by documents, that he is not profitably engaged anywhere else and that, he is actually utilizing a tenanted accommodation, and he is also utilizing the car, which he was entitled to have as per the terms of his appointment.

9. The tenacity of the argument of learned counsel for the respondents, though admitting the fact of his liability was that the aforesaid benefit would have been made payable by the respondents, subject to the proof being placed by the petitioner before them.

10. With all reverence at my command, I am not in agreement with the argument extended by the counsel for the respondents. The remittance of the allowances towards the house rent, car allowances and mobile internet expenditure, which was directed as per the judgment of the Division Bench and contained in para 12, it never contained a pre-condition that prior to its payment being made to the petitioner, petitioner was supposed to establish it by way of an evidence, by an appropriate documentation in order to entitle him for the benefit because the judgment in its para 12; in its strict sense contained a direction that all benefits would be entitled to be paid to the petitioner. This expression and explanation given by the counsel for the respondents that they could not pay the said allowances or

the benefit, which was admittedly payable because the petitioner had not placed on record the proof, which they wanted, I am of a very firm view, that such an interpretation, which has been given to an order would amount to be a criminal contempt as it would be a denial by virtue of sitting over a direction, which had been given by the Division Bench, by sitting over it and interpreting as if, the benefit would be payable only subject to the condition that the petitioner proves the fact; which he was called upon by the respondents, which as per my view was not a direction given by the Court. Hence, the counsel for the respondents had sought time to seek an appropriate clarification from the Division Bench of the directions given in para 12, in order to justify the non compliance of the judgment, which was rendered as back as on 30.04.2019.

11. This Court is agonized to observe that after rendering of the judgment on 30.04.2019 and even after the service of the copy of the said judgment on the respondents on 06.05.2019; they had rather voluntarily awaited its compliance, for the reasons best known to them, and it is not only that the partial compliance of the judgment could only be solicited from the respondents after the Contempt Court passed the orders in the contempt proceedings. This apparently shows there is a deliberate and intentional non compliance of an order/judgment of the Court; which cannot be permitted to be carried by the respondents and hence, there is no hesitation for this Court to hold that it was a deliberate and intentional contempt and rather a criminal contempt too by passing an order of 26.11.2020, by not making the complete compliance and

then justifying the same for the reasons already dealt with above.

12. In that view of the matter, I hereby frame a charge against respondent no.1 to the following effect:-

"To show cause within a period of two weeks from today as to why the proceedings of criminal contempt may not be drawn against him for taking an appropriate action under the Act."

13. Put up this contempt petition on 25.01.2021.

(Sharad Kumar Sharma, J.)

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