Allowed

Ashwani Kumar v. State of U.P.Thru Addl.Chief Secy.Revenue Deptt.Lko and Ors.

Allahabad HC6 Jul 2022SPLA/400/2021

Case brief

AI extract

What is this about?

This Division Bench held that a special appeal was maintainable when a Single Judge in contempt proceedings decided an issue regarding the nature of departmental inquiry on merits. The court quashed the contempt order for exceeding jurisdiction, applying precedents where contempt courts cannot reconsider substantive disputes between parties.

What did the court decide?

Special appeal allowed; judgment and order dated 21.09.2021 in Contempt No.588 of 2021 quashed; matter restored to Contempt Judge to decide afresh.

Ashwani Kumar Vs State of U.P.Thru… — Constitutional and Fundamental Rights | Allahabad HC (2022)

RESERVED

Court No. - 2

Case :- SPECIAL APPEAL No. - 400 of 2021

¶5

Appellant :- Ashwani Kumar Respondent :- State Of U.P.Thru Addl.Chief Secy.Revenue Deptt.Lko And Ors. Counsel for Appellant :- Amarendra Pratap Singh Counsel for Respondent :- C.S.C.

¶6

Hon'ble Devendra Kumar Upadhyaya,J. Hon'ble Subhash Vidyarthi,J.

¶7

1. This special appeal arises in respect of an order dated 21.09.2021 passed by the learned Contempt Judge in Contempt No.588 of 2021 whereby the contempt petition has been dismissed.

¶8

2. The order dated 21.09.2021 passed by the Contempt Judge is sought to be challenged before this Division Bench in intra-court appeal referable to Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952.

¶9

3. We have heard Shri A. P. Singh, learned Senior Advocate, assisted Shri Amarendra Pratap Singh for the appellant and Shri Amitabh Rai, learned Additional Chief Standing Counsel representing the State-respondents.

¶10

4. At the outset learned State Counsel has raised a preliminary objection as to the maintainability of the special appeal contending that since the order under appeal has been passed by the learned Single Judge in contempt jurisdiction whereby the contempt petition has been dismissed, this special appeal is not maintainable. It is the

¶11

¶12

submission of the learned State Counsel that in terms of the provisions contained in Chapter VIII Rule 5 of the Rules of the Court appeal does not lie before a Division Bench of this Court from a judgment passed by the learned Single Judge in contempt jurisdiction, specially while learned Single Judge dismisses the contempt petition recording a finding that no contempt of the order passed by the Writ Court is made out.

¶13

5. On the other hand, learned Senior Advocate representing the appellant has submitted that the submission made by the learned State Counsel does not have any force considering the facts and circumstances of the case and also taking into account the fact that learned Single Judge while exercising the contempt jurisdiction has travelled beyond her jurisdiction inasmuch as the order under appeal touches upon the merit of the dispute between the parties and observations made in this regard by the learned Single Judge in the judgment under appeal are manifestly beyond contempt jurisdiction .

¶14

6. We have given given our anxious consideration to the rival submissions made by the learned counsel representing the respective parties and have also perused the records available before this Court.

¶15

7. Before adverting to the rival arguments advanced by the learned counsel representing the respective parties, we may note certain facts of this case in brief.

¶16

8. The appellant-petitioner is said to have been appointed on contract basis to execute the work relating to data feeding by means of an order dated 01.12.2009

¶17

¶18

passed by the Sub Divisional Officer, Sadar, Lucknow/Chairman, Prayokta Prabhar Samiti, Tehsil Sadar, Lucknow. By the said order dated 01.12.2009 appellant-petitioner and another person, namely, Mohd. Rafe Khan were required to execute a contract which was entered into on 01.12.2009 between the Sub Divisional Officer and the appellant-petitioner. The said contract is on record, according to which, the appellant-petitioner along with Mohd. Rafe Khan was required to execute the work relating to data feeding and in lieu thereof they were entitled to be paid a sum of Rs.60,000/- per annum. It was also agreed between the parties that the appellantpetitioner and Mohd. Rafe Khan shall jointly execute the work. The appellant-petitioner and Mohd. Rafe Khan also agreed that in case any irregularity, after enquiry, is found the contract can be cancelled and accordingly they may be removed and in such an exigency they will have no objection.

¶19

9. It is clear that in respect of certain irregularities a show cause notice was given to the appellant-petitioner on 20.08.2018 who submitted his explanation on 21.08.2018. The explanation submitted by the appellant-petitioner was considered by the District Level Prayokta Prabhar Samiti which on 27.08.2018 recommended that contract be cancelled and the services of the petitioner-appellant be terminated. On the said recommendation an order was passed on 01.09.2018 whereby the contract was cacelled and accordingly the services of the petitioner-appellant were also terminated. A consequential order was also

¶20

¶21

passed on 17.01.2019 removing the petitioner-appellant from job assigned to him.

¶22

10. These two orders dated 01.09.2018 and 17.01.2019 were challenged by the appellant-petitioner before this Court by means of Writ Petition No.4868 (S/S) of 2019 which was allowed by means of the judgment and order dated 09.08.2019 passed by the learned Single Judge of this Court and the order terminating the contract and services of the petitioner-appellant were quashed. The appellant-petitioner was held to be entitled to all consequential services benefits as if the order terminating his services was never passed. While allowing the writ petition the learned Single Judge by means of the judgment and order dated 09.08.2019 also observed that the said judgment shall not preclude the competent authority from taking fresh decision in the matter strictly in accordance with law after affording an opportunity of hearing by conducting a full-fledged departmental inquiry.

¶23

11. The appellant-petitioner, thereafter, was reinstated, however, in compliance of the order dated 09.08.2019 passed by this Court the Sub Divisional Officer/Chairman, Tehsil Level Prayokta Prabhar Samiti, Lucknow passed an order on 08.06.2020 after giving the appellant-petitioner opportunity to represent his case. In the said order dated 08.06.2020 the petitioner-appellant was found guilty of certain irregularities, such as misuse of the digital signature and as such the Sub Divisional Officer cancelled the contract dated 01.12.2009 and accordingly the relationship between the employer and employee stood severed.

¶24

¶25

12. The order dated 08.06.2020 became the subject matter of challenge before this Court in Writ Petition No.10154 (S/S) of 2020 filed by the petitioner-appellant. The said writ petition was allowed by the learned Single Judge by means of the judgment and order dated 12.01.2021 whereby it was held that no proper departmental proceedings were initiated in terms of the order dated 09.08.2019 passed by this Court in the earlier writ petition filed by the petitioner-appellant and accordingly the Court observed that the order dated 08.06.2020 was passed in the teeth of the said order of the Court dated 09.08.2019. The writ petition, thus, was allowed and the order dated 08.06.2020 was quashed. The respondents in the writ petition were directed to reinstate the petitioner-appellant, however, the prayer regarding arrears of salary w.e.f. 01.09.2018 to August, 2019 was refused on the principle of No Work No Pay.

¶26

13. Alleging non-compliance of the order dated 12.01.2021 the contempt proceedings bearing Contempt No.588 of 2021 were initiated by the petitioner-appellant wherein the order under appeal herein, dated 21.09.2021 has been passed. The Sub Divisional Officer, Sadar, Lucknow appeared before the learned Contempt Judge on 21.09.2021 and filed an application seeking deferment of the contempt proceedings. The affidavit in support of the said application was sworn in on 21.09.2021 whereby it was submitted before the learned Contempt Judge that permission to file special appeal against the judgment and order dated 12.01.2021 was sought by the District Magistrate, Lucknow by means of his letter dated

¶27

¶28

24.05.2021. Thereafter certain clarifications were sought by the State Government from the District Magistrate for filing the special appeal by means of the letter dated 31.05.2021 and accordingly clarifications were also submitted by the District Magistrate, Lucknow to the State Government by means of the letter dated 29.06.2021. In the aforesaid background, a prayer was made by the Sub Divisional Officer before the learned Contempt Judge on the date on which the order under appeal dated 21.09.2021 has been passed that the contempt proceedings may be deferred in contemplation of filing of the special appeal a permission in respect of which has been sought by the District Magistrate.

¶29

14. The learned Single Judge considered the said application seeking deferment of the contempt proceedings, however, the contempt petition was dismissed by the order under appeal. Learned Single Judge while passing the order dated 21.09.2021 exercising her contempt jurisdiction considered the prayer for deferment of hearing of the contempt petition and also concluded that the order dated 12.01.2021 passed by the writ court was not complied with. However, having recorded a finding about non-compliance of the order dated 12.01.2021 passed by the writ court, learned Contempt Judge proceeded to observe that there are statutory provisions know as U. P. Government Servants Discipline and Appeal Rules, 1999 which are not applicable to the contractual employees which prevent the opposite parties from complying with the writ court's order. Learned Contempt Judge further observed that the terms of

¶30

¶31

contract entered into between the petitioner-appellant and the State authorities do not provide initiation of departmental proceedings and hence it cannot be said that there is any willful disobedience of the writ court's order dated 12.01.2021. Making such observation the contempt petition has been dismissed.

¶32

15. The aforesaid observations made by the learned Contempt Judge are contained in paragraph 10 of the judgment and order dated 21.09.2021 which is extracted herein below:

¶33

"10. This Court finds that order dated 12.01.2021 passed by writ court has not been complied with but there are statutory provisions,namely. the U.P. Government Servants Discipline and Appeal Rules,1999 which are not applicable to the contractual employees which prevent the opposite parties from complying with the writ court's order. The terms of contract entered between the petitioner and opposite parties also do not provide initiation of departmental proceedings. There is no willful disobedience of the writ court's order dated 12.01.2021 ."

¶34

16. As to whether a full-fledged departmental inquiry ought to have been initiated or not against the petitionerappellant was an issue, which, in our considered opinion, lay outside the scope of contempt jurisdiction. The observations made by the learned Contempt Judge in paragraph 10 of the judgment under appeal clearly touch upon the merit of the dispute between the parties. As to in what manner the inquiry was to be conducted, that is to say, whether a full-fledged departmental proceedings as contemplated in U. P. Government Servants Discipline

¶35

¶36

and Appeal Rules, 1999 or inquiry in any other manner was to be undertaken, was the issue which was in the domain of the learned Single Judge who exercised the writ jurisdiction which was invoked by the petitioner-appellant while challenging the order dated 08.06.2020 which was quashed by the writ Court by means of the order dated 12.01.2021 in respect of which the contempt petition was filed.

¶37

17. When we peruse the entire judgment dated 21.09.2021 passed by the learned Contempt Judge, what we find is that it is beyond any dispute that the learned Contempt Judge has given a finding as to the issue between the parties in relation to nature of inquiry to be conducted before the services of the petitioner-appellant were terminated.

¶38

18. Learned Contempt Judge has, thus, without any doubt, rendered a decision on the merits of the dispute between the parties which is impermissible being beyond the scope of contempt jurisdiction under the Contempt of Courts Act, 1971. The issue as to whether in a case where contempt jurisdiction is exercised for rendering a decision on merit between the parties, such decision would be appealable under section 19 of the Contempt of Courts Act, and if not, what would be the remedy to the person aggrieved, has been considered by Hon'ble Supreme Court in the case of Midnapore Peoples' Coop. Bank Ltd. and others vs. Chunilal Nanda and others, reported in (2006) 5 SCC 399. In the said case, it has been held that if the Contempt Judge, for whatsoever reason, decides an issue or makes any direction relating to the merits of

¶39

¶40

dispute between the parties, the aggrieved person is not without remedy and such an order is open to challenge in an intra-court appeal if there is a provision for an intracourt appeal, or by seeking special leave to appeal under Article 136 of the Constitution of India. The legal position in respect of filing of appeals against the orders under contempt proceedings have been summarized in paragraph 11 of the said judgment in the case of Midnapore Peoples' Coop. Bank Ltd. (supra) which is reproduced hereunder:

¶41

"11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarised thus:

¶42

I. An appeal under Section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.

¶43

II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the Contempt of Courts Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.

¶44

III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.

¶45

¶46

IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of "jurisdiction to punish for contempt" and, therefore, not appealable under Section 19 of the Contempt of Courts Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under Section 19 of the Act, can also encompass the incidental or inextricably connected directions.

¶47

V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases).""

¶48

19. Point V as summarized by Hon'ble Supreme Court in the case of Midnapore Peoples' Coop. Bank Ltd. (supra), thus, clearly contemplates two situations where an intra-court appeal is permissible to be filed against an order or judgment passed by the learned Single Judge exercising contempt jurisdiction and these situations are; (i) in case the learned Contempt Judge decides an issue relating to merits of the dispute between the parties or (ii) the learned Contempt Judge makes any direction relating to merits of the dispute between the parties. It is settled principle of law that an issue decided by the writ court cannot be reopened in the contempt proceedings.

¶49

¶50

20. This view taken by the Court is forfeited by another judgment of Hon'ble Supreme Court in the case of Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation and others Vs. M. George Ravishekaran and others , reported in (2014) 3 SCC 373. Hon'ble Supreme Court has formulated the principles which must govern the exercise of contempt jurisdiction in the said case which are as under:-

¶51

"...The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or willful violation of the same. Decided issues cannot be reopened; nor the plea of equities can be considered. Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already

¶52

¶53

expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above..." "

¶54

21. In the case of Sudhir Vasudeva (supra) Hon'ble Supreme Court has unequivocally held that while exercising the contempt jurisdiction, the power available to the Court in other corrective jurisdictions like review or appeal is not to be trenched upon and that no order or direction supplemental to what has already been expressed by the writ Court should be issued by the Court while exercising contempt jurisdiction.

¶55

22. We may also refer to another judgment of Hon'ble Supreme Court in the case of J. S. Parihar vs. Ganpati Duggal, reported in AIR 1997 SC 113 wherein the High Court while hearing the contempt petition issued a direction to redraw a seniority list and in respect of the said direction Hon'ble Supreme Court observed that passing of such an order while exercising contempt jurisdiction would not be permissible.

¶56

23. A Division Bench of this Court in the case of A. P. Verma, Principal Secretary vs. U. P. Laboratory Technicians, reported in 1998 (3) AWC 2264 , while exercising jurisdiction of contempt appeal under section 19 of the Contempt of Courts Act, has observed that appeal would also be maintainable under Chapter VIII Rule 5 of the Rules of the Court against the directions issued which are regarding the merit of the claim made by the parties in the writ petition. Para 8 of the said judgment is extracted herein below:

¶57

¶58

"8. Under the impugned order, learned Single Judge has recorded a clear finding that the directions issued in the writ petition had not been complied with but he did not want to punish the appellants at this stage. He has issued a further direction to the appellants to comply with the order passed in the writ petition in its letter and spirit In view of what we have held above, this appeal is maintainable under-Section 19 of the Contempt of Courts Act against the finding regarding non-compliance of the order which amounts to a 'civil contempt' within the meaning of Section 2(a) of the Contempt of Courts Act. The appeal will also be maintainable under Chapter VIII, Rule 5 of the Rules of the Court against the directions issued in the impugned order which are regarding the merit of the claim made by the respondents in the writ petition."

¶59

24. Thus, there is no doubt so far as the legal principles governing the exercise of jurisdiction by Division Bench of this Court under Chapter VIII Rule 5 of the Rules of the Court in relation to an order passed by a Contempt Judge, are concerned. Midnapore Peoples' Coop. Bank Ltd. (supra) still holds the field, according to which in case learned Contempt Judge decides an issue relating to merits of the dispute between the parties, such judgment will be termed to be a judgment rendered by the learned Single Judge while exercising his jurisdiction under Article 226 of the Constitution of India and as such special appeal in such a situation would be maintainable.

¶60

25. When we examine the judgment and order under appeal in this case, as observed above, what we find is that the learned Contempt Judge, after holding that the order dated 12.01.2021 passed by the writ Court has not

¶61

¶62

been complied with, has further travelled to hold that since the U.P. Government Servants Discipline and Appeal Rules, 1999 are not applicable in the case of the petitionerappellant being a contractual employee, the respondents were prevented from complying with the writ Court's order. We have already observed above that the issue as to the nature of inquiry, that is to say as to whether the inquiry was to be conducted in terms of the provisions contained in U. P. Government Servants Discipline and Appeal Rules, 1999 or any other enquiry, was an issue completely beyond the scope of contempt jurisdiction. Hon'ble Supreme Court in the case of Sudhir Vasudeva (supra) has held that while exercising contempt jurisdiction the Contempt Court must be conscious that it is not possessed of the powers of other corrective jurisdictions like review or appeal against the judgment passed by the writ Court.

¶63

26. For the reasons as aforesaid while not agreeing with the preliminary objection as to the maintainability of the present special appeal raised by the learned State Counsel, we hold that the special appeal in the facts of the case is maintainable.

¶64

27. For the reasons already discussed above, we are also of the considered opinion that the learned Single Judge has exceeded her jurisdiction while passing the judgment under appeal dated 21.09.2021 inasmuch as it was beyond the scope of contempt judge to have touched upon the merits of the dispute between the parties, specially in respect of nature of inquiry to be conduced before the services of the petitioner-appellant were terminated.

¶65

¶66

28. Thus, the special appeal is allowed and the judgment and order dated 21.09.2021 passed by the learned Contempt Judge in Contempt No.588 of 2021 is hereby quashed.

¶67

29. The Contempt Petition No.588 of 2021 is restored to the board of learned Contempt Judge who is requested to decide it afresh.

¶68

30. We may, however, hasten to observe that in case the State-respondents were/are aggrieved by the judgment and order dated 12.01.2021 passed by the learned Single Judge in Writ Petition No.10154 (S/S) of 2020 it was/is always open to them to challenge the same before any other higher forum, either by instituting special appeal under Chapter VIII Rule 5 of the Rules of the Court or by approaching Hon'ble Supreme Court by way of instituting proceedings seeking Special Leave to Appeal.

¶69

31. There will be no order as to costs.

¶70

Order Date :- 6/7/2022 akhilesh/

¶71

(Subhash Vidyarthi, J.) (D. K. Upadhyaya, J.)

¶72

Judgment pronounced by me in open Court under Rule 1(2) of Chapter VII of Allahabad High Court Rules, 1952.

¶73

(D. K. Upadhyaya, J.)

¶74

6/7/2022

¶75

Digitally signed by AKHILESHWAR KUMAR Date: 2022.07.07 10:34:35 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Ashwani Kumar v. State of U.P.Thru Addl.Chief Secy.Revenue Deptt.Lko and Ors.

Case brief

What is this about?

What did the court decide?

Ashwani Kumar v. State of U.P.Thru Addl.Chief Secy.Revenue Deptt.Lko and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S Sulbha Enterprises Thru. Sole Proprietor Ravi Lavania Vs Chairman U.P. Jal Nigam Urban Lucknow and Ors.

Smt. Girja Singh (in Wric 1004847 of 2012) Vs Committee of Management Intermediate College Amethi Thru.Manager Shiv Bahadur Singh and Others

U.P. Jal Nigam (Rural) Thru. Its Chairman and Another Vs Devendra Nath Shukla and 47 Others

Commissioner of Customs Aliganj Lko. Vs Sri Rajesh Jhamatmal Bhat and Anr.

State of U.P. Thru.Addl.Chief Secy./Prin.Secy.Revenue and Ors. Vs Lal Pratap Singh and Another

Mtv Buddhist Religious andCHARITABLE Trust Thru President andANR Vs State of U.P.through Prin.Secy. Minorities Welfare and Ors.