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Judgment
Rakesh Tiwari, J.—Special Appeal No. 1447 of 2006
Heard Sri S.C. Dwivedi, learned counsel for the respondents-appellants learned Standing Counsel for the respondent and perused the record.
This special appeal is preferred challenging the correctness of the judgment and order dated 12.10.2006 passed by the Writ Court in Civil Misc. Writ Petition No. 56848 of 2006 - Rajeev Ranjan v. State of U.P. & Ors. It is connected with Contempt Appeal No. 06 of 2005, Special Appeal No. 226 of 1995 and Writ Petition No. 56848 of 2006 as same question of facts and law are involved.
The order impugned passed in Writ Petition No. 56848 of 2006 read thus:
"Heard learned counsel for the parties.
The petitioner was appointed as Tax Inspector on 12.6.1993 but as his salary was not being paid by the Executive Officer inspite of the directions of the Chairman, he approached this Court through Writ Petition No. 34054. A counter affidavit was filed claiming that the appointment of the petitioner was forged and the author of the order did not have any jurisdiction. A learned Single Judge by a detailed and reasoned order allowed the writ petition vide order and judgment dated 6th February, 1995 holding that the appointment of the petitioner was valid and thus directed payment of his salary within eight weeks. However, as the said order was not complied by the Executive Officer, a Contempt Petition No. 2183 of 1997 was filed and when Sri Rajiv Ranjan Singh, the Executive Officer, inspite of the opportunity did not either reinstate the petitioner or released his salary, he was found guilty and sent to Jail vide order dated 29.4.2005. The Executive Officer filed Contempt Appeal No. 6 of 2005 and he was enlarged on bail but yet he did not comply with the order and thus the Appellant Bench vide order dated 3.8.2005 granted four weeks further time to comply with the writ judgment on the statement made on behalf of the Executive Officer. It is pleaded that even then the order has not been complied and the Executive Officer has taken strong umbrage of the two orders of this Court. To the contrary, his services were terminated on 26.11.2005 and the petitioner was again forced to file Writ Petition No. 24961 of 2006. It is pleaded that the record was summoned and the Executive Officer was directed to appear along with the record and when the Court observed with regard to some manipulations, the termination order was withdrawn and thus the writ petition was disposed off on 24.5.2006 without making any adverse remarks. Again, the services of the petitioner has been terminated by the impugned order.
Serious allegations have been alleged against the two private respondents and the termination is based on same grounds which was raised in the first writ petition.
On the aforesaid background, a case for interim order is made out.
Meanwhile, the operation of the order dated 22.9.2006 shall remain stayed and the petitioner shall be paid his salary till the next date."
From perusal of the order impugned, the bad conduct of the respondents-appellants in implementation of the orders of the Court is reflected. However, the order impugned is an interim order as such the special appeal is not maintainable under Chapter VIII, Rule 5 of the Rules of the Court.
The appeal is accordingly dismissed.
Restoration Application No. 177728 of 2005 in Special Appeal No. 226 of 1995
This special appeal has been preferred challenging the validity and correctness of order dated 06.02.1995 passed by learned Single Judge of this Court in Civil Misc. Writ Petition No. 34954 of 1993 - Rajiv Ranjan & Ors. v. Nagar Palika Maharajganj & Anr., allowing the writ petition filed by petitioners-respondents, directing the respondents-appellants to pay salary to the petitioners-respondents in accordance with law month by month so long they continue in service and also to pay arrears of salary to them.
The aforesaid special appeal was listed on 01.07.1997 before the Court of Hon''ble the Chief Justice and Hon''ble S.R. Singh, J. It was dismissed in default as the counsel for the appellant was not present. The order read thus:
"List has been revised yet there is no appearance for both the parties. The appeal is dismissed for default."
An application being Restoration Application No. 47675 of 1997 appears to have been moved in July, 1997 stating that inadvertently applicant''s office could not mark the case in the cause list as Sri Janardan Sahai, the then Advocate was not present as the case was dismissed in default. Moreover, in place of Sri Sahai, who was the earlier counsel engaged in the case, Sri V.B. Singh was subsequently engaged and as such Sri Sahai had no instructions in the matter. It is also stated in the application for recall that the other counsel Sri Anil Srivastava is a junior of Sri M.L. Srivastava. He was out of station during the summer vacation and returned only on 02.07.1997 as such he was not aware about the listing of the case on 01.7.1997 when it was dismissed in default. In this backdrop recall of the order was prayed for on the ground that there was no negligence or laches on the part of the applicant.
The relevant paras i.e. paras 3 to 6 of the affidavit read thus:
"3. That inadvertently applicant''s office could not mark the case in the cause list.
That Sri Janardan Sahai, Advocate was earlier engaged in the case but later on Sri V.B. Singh was engaged thus Sri Sahai had no instruction in the case.
That the other counsel, Sri Anil Srivastava is a Junior counsel of Sri M.L. Srivastava, who was out of station during the Summer Vacation and was returned on 02.7.1997. Thus he was also not aware about the listing of the case.
That there is no negligence or latches on the part of the applicants."
The aforesaid restoration application was allowed vide order dated 14.08.2003.
It appears from record that special appeal was again listed on 26.5.2004 and was again dismissed for default by the Bench of Hon''ble M. Katju and Hon''ble R.S. Tripathi, JJ. by the following order:
"None appears for the appellants. Appeal is dismissed for default. Interim order if any is vacated."
The petitioner-appellant then again moved recall application No. 158268 of 2004 on the ground that counsel for the appellants failed to mark the case in daily cause list; and that the petitioner came to know about the order dismissing the special appeal when the deponent, who has made the affidavit, came to Allahabad, contacted his counsel and inquired about the progress of the case. The relevant para of affidavit of restoration read thus:
"3. That the counsel for the appellants failed to mark the case in daily cause list and hence he could not appear before the Hon''ble Court in the present case listed on 26.5.2004."
The order dated 26.5.2004 dismissing the appellant appeal was then recalled on 01.10.2004, which read thus:
"This is an application to recall the order dated 26.5.2005 by which the petition was dismissed for default. Cause shown is sufficient. Order dated 26.5.2004 is recalled.
List before the appropriate Court. The case shall not be treated as tied up with us."
After recall of the order of dismissing the special appeal in default, it was listed on 01.9.2005 when again it was dismissed in default due to non-prosecution by the following order passed by the Bench of Hon''ble S. Rafat Alam and Hon''ble Vineet Saran, JJ. which read thus:
"List has been revised. None responded on behalf of the appellant even in the revised call. However, Shri Kripa Shanker Singh, learned counsel for the respondent is present. The appeal is, therefore, dismissed in default. Interim order, if any, stands vacated."
A recall/restoration application No. 177728 of 2005 was preferred by the appellant vide application dated 07.09.2005. In this application also, apart from some other grounds, the cause shown again for the third time was that the case could not be marked in the cause list. It was prayed that in the facts and circumstances of the case, the Court may graciously be pleased to recall the order dated 1.9.2005 and restore the special appeal to its original number. Paragraph 2, 3 and 4 of the affidavit filed in support of restoration application read thus:
"2. That it is pertinent to mention here that in the abovenoted special appeal earlier another counsel had been engaged but at present Sri Suresh Chandra Dwivedi has been engaged and only he has instruction to argue the case.
That in the abovenoted special appeal the respondents have already served a counter affidavit to the counsel for the appellants on 24.8.2005 and the rejoinder affidavit is under preparation.
That the abovenoted writ petition was listed before Hon''ble S. Rafat Alam, and Hon''ble Vineet Saran, JJ. On 1.9.2005 but due to the mistake of the office of appellants'' counsel the case could not be marked in the cause list. The mistake was bonafide and not intentional, deliberate or negligent. Due to the aforesaid reason when the case was called out, the appellants'' counsel could not appear and the case was dismissed in default."
It may mention that Sri S.C. Dwivedi counsel for the appellant had also filed Vakalatnama by that time i.e. on 7.4.2005. It is also clear from the aforesaid that the petitioner-appellant has engaged number of advocates to appear in this special appeal. He has not withdrawn the power of any of the advocates, therefore, the ground taken in the appeal that restoration application No. 177728 of 2005 for recall of the order dated 01.9.2005 on the ground that only he (S.C. Dwivedi) had instruction in the matter to argue the case is incorrect and not borne from record, as such is not bona fide. Furthermore, when the appellant had himself moved an application for listing of the case, he knew that the case was coming up and therefore, the ground that he has not marked the case and had no knowledge about listing of the case is also not bona fide particularly in view of the fact that in all the three applications for restoration as previously filed by the petitioner for recall of the orders dated 01.7.1997, 26.5.2004 and 01.9.2005 ground has been taken that the office of appellant''s counsel could not mark the case in the cause list. Rather from the repeated orders it is apparent that the appellant was in the act of "bench hunting" and was not at all inclined to argue the case before a bench which was not of his choice. He was therefore, getting the case dismissing for default and thereafter effort was made for creating pendency of the case by filing recall application it in consistently. It may be noted that the case was got dismissed in default on three occasions and three recall applications on the same ground that the case could not be marked, cannot said to be a co-incidence. It is also noted that the case is not being argued since 01.9.1997.
Therefore, for these reasons as well as for the reasoned contained in the interim order passed in Writ Petition No. 56848 of 2006, which is impugned in connected special appeal No. 1447 of 2006, we are not inclined to allow this restoration application.
The restoration application No. 177728 of 2005 accordingly stands rejected.
Contempt Appeal No. 06 of 2005
This contempt appeal has been filed under Section 19 of Contempt of Courts Act challenging the judgment and order dated 29.4.2005 in C.M. Contempt Petition No. 2183 of 1997 - Rajiv Ranjan and others v. Sri Jai Mangal Kanaujia, whereby appellant has been sentenced to one month simple imprisonment and to fine of Rs. 2,000/- payable within 15 days, and in case of default, further 15 days simple imprisonment was provided.
The order impugned provides backdrop of the complete proceedings on the conduct of the appellant which read thus:
"Heard learned counsels for the parties.
This contempt petition was earlier filed by the four applicants but subsequently applicants No. 2, 3 and 4 did not press this petition and as such their names were deleted by an order of this court.
The applicant was appointed as a Tax Inspector on 12.6.1992 and he continuously worked as such but his salary was not released forcing him to file writ petition No. 34954 of 1993. In the writ petition, pleadings were exchanged between the parties and an issue was also raised that the Chairman was not the appointing authority. The writ court by a detailed order and judgment dated 6.2.1995 allowed the writ petition with a direction to the respondents to pay all the arrears of salary within a period of eight weeks. In spite of service of the order, no compliance was made. However, a Special Appeal No. 226 of 1995 was filed but the same was also dismissed for non-prosecution vide order dated 1.7.1997. Yet the order was not complied forcing the applicant to file the present contempt petition on 5.9.1997. In the meantime, the Chairman and the Executive Officer were replaced and as such the new incumbents were impleaded as opposite parties No. 3 and 4 and notices were issued. After expiry of about a decade the applicant was reinstated in pursuance of the Courts order dated 7.10.2004 but yet neither the current nor the arrears of salary was released.
When the matter was taken up on 10.2.2005 the following order was passed by Hon''ble S.P. Mehrotra, J.:
"Pursuant to the order date 1.2.2005, the case is listed today peremptorily.
Shri R.N. Tripathi, learned counsel for the petitioner/applicant states that pursuant to the directions given in the said order dated 1.2.2005, he tried to give the written intimation of the said order dated 1.2.2005 to Shri M.L. Srivastava, learned counsel for the opposite parties but Shri M.L. Srivastava declined to take the said intimation.
Shri M.L. Srivastava, learned counsel for the opposite parties has sent the illness slip today. However, as the case is listed peremptorily today, there is no occasion to adjourn the case today, and the court is proceeding to pass the order.
On 26.8.2004, the court passed the following order.
"The applicant No. 1 claims to be Tax Inspector while other applicants claim to be a peon in the Nagar Palika Parishad, Maharajganj whose services were terminated against which they preferred writ petition No. 34954 of 1993 and this court vide order dated 6.2.1995 quashed the termination order and directed the opposite parties to pay the salary of the applicants along with arrears within eight weeks. As the order was not complied with, the present contempt petition was filed.
Upon issuance of notice, the opposite party filed their replies stating therein that belated special appeal had been filed against the said order.
However, learned counsel for the applicant states that the said special appeal has since been dismissed on 26.5.2004.
Learned counsel for the opposite party seeks two weeks time to verify the assertion.
List in the week commencing 20.9.2004.
In the mean time, however the opposite parties may comply with the order of the writ court."
Pursuant to the said order dated 26.8.2004, the case was listed before the court on 20.9.2004. On the said date, i.e., 20.9.2004, the court passed the following order.
"Shri Shashi Nandan, learned Senior Advocate states that the applicants may appear before the Executive Officer, Nagar Palika Parishad, Maharajganj on 30.9.2004 to enable him to comply with the Writ Court''s Order, Let it be done.
The Executive Officer and the applicants should both file their respective affidavits as to what transpire by the next date.
List on 7.10.2004"
Pursuant to the said order dated 20.9.2004, the case was listed before the Court on 7.10.2004. On the said date, i.e. 7.10.2004, the Court passed the following order.:
"Learned Counsel for applicant has yet not filed his power on behalf of the applicant Nos. 2,3 and 4.
He is permitted to delete their names from the array of parties.
In pursuance of the order dated 26.7.2004, a counter affidavit on behalf of opposite party No. 3 and a supplementary affidavit on behalf of the applicant have been filed today.
Learned counsel for the respective parties may file their replies within a month.
Learned counsel for the opposite party says that in case the applicant appears, he would be allowed to join and be paid his current salary.
List on 9.11.2004."
Pursuant to the said order dated 7.10.2004, the case was listed before the Court on 9.11.2004.On the said date,i.e.9.11.2004, the Court directed the case to be listed before the Court in the next cause list.
Pursuant to the said order dated 7.10.2004, the case was listed before the court of 23.11.2004. On the said date, i.e. 23.11.2004,the case was passed over.
The case was then listed before the Court on 30.11.2004. On the said date, i.e. 30.11.2004, the Court passed the following order.
"Heard learned counsel for he parties.
It is alleged that though in pursuance of the writ order the applicant has been allowed to join and is functioning but it is contended by the applicant that the current salary is not being paid to him.
Learned counsel for the opposite party states that since the applicant belongs to Centralized Services, the salary is to be paid by the State Government. He has also stated that the Special Appeal against the Writ Order is listed today before the appropriate Court.
List in the week commencing 20th December 2004".
The case was thereafter listed before the Court on 4.1.2005, when Shri M.L. Srivastava, learned counsel for the opposite parties has sent illness slip. In the circumstances, the case was directed to be listed peremptorily in the next cause list.
Pursuant to the said order dated 4.1.2005, the case was listed before the Court peremptorily on 12.1.2005. When learned counsel for the applicant was present but the learned counsel for the opposite parties was not present. In the circumstances, the case was passed over and was directed to be listed peremptorily in the next cause list. As noted in the said order dated 12.1.2005 Shri.R.N. Tripathi, learned counsel for the applicant undertook to inform the learned counsel for the opposite parties regarding the said order dated 12.1.2005 in writing within 24 hours.
The case was, thereafter, listed before the Court peremptorily on 20.2.2005. When Shri. R.N. Tripathi, learned counsel for the applicant informed the Court that pursuant to the directions given in the said order dated 12.1.2005, he has informed the learned counsel for the opposite parties regarding the said order dated 12.1.2005 in writing on 12.1.2005 itself.
In the circumstances, by the order dated 20.1.2005, the case was directed to be listed peremptorily in the next cause list.
The case was, thereafter, listed before the court peremptorily on 1.2.2005. When the Court directed the case to be listed peremptorily in the next cause list.
Pursuant to the said order dated 1.2.2005, as noted above, the case is listed today peremptorily.
Shri. R.N. Tripathi, learned counsel for the petitioner/applicant submits that the petitioner/applicant is not big permitted to work or sign the attendance register, nor is the petitioner/applicant being paid his salary. It is further submitted by Shri. Tripathi, learned counsel for the petitioner/applicant that the Joint Secretary, U.P. Government as well as the Director, Local Authorities, U.P. Lucknow have already directed that the compliance of the directions given in the order of the Writ Court dated 6.2.1995 be ensured. Shri. Tripathi refers to the communication dated 4.9.1996 sent by the Joint Secretary, Government of Uttar Pradesh and the communication dated 29.8.1997 sent by the Director, Local Authorities, U.P. Lucknow, copies whereof have been filed as Annexures -1 and 2 respectively to the affidavit sworn on 9.11.2004, files on behalf of the petitioner/applicant.
Having considered the submissions made by Shri. R.N. Tripathi, leaned counsel for the petitioner/applicant, it is directed that Rajiv Ranjan Singh (opposite party No. 3) and Smt. Neeta Kanaujia (opposite party No. 4) will be personally present before the Court on 5.4.2005.
The case will be listed on 5.4.2005.
Copy of this order will be sent along with the notice.
The case will not be treated as tied up with me."
Again when the matter was taken on 5.4.2005,following order was passed by Hon''ble V.C. Mishra, J.:
"An application seeking exception from personal appearance on behalf of opposite party No. 4. Has been moved supported by an affidavit sworn by one Sri Ram Das a Suits clerk posted in Nagar Palika Parishad, Maharajganj instead of the personal affidavit of opposite party No. 4.However, after perusing the medical certificate annexed to the affidavit, the opposite party No. 4, who is in family way is exempted from further appearance in person till here confinement.
An application supported by a counter affidavit has been filed on behalf of opposite party No. 3 Sri. Rajeev Ranjan Singh, who is the Executive Officer, Nagar Palika Parishad, Maharajganj wherein it has been stated in para-8 that the order dated 6.2.1995 passed by this court alleged to have been fluted has been challenged in the Special Appeal but the same has not been taken up for hearing till date. It has also been stated in para -9 that he has sent a letter dated 4.10.2004 to the Secretary, Nagar Vikas Vibhag followed by reminder dated 24.3.2005 for compliance of the judgment and order dated 6.2.1995 and seeking guideline arrangement of fund so that the order of the court could be compiled with. In para-10 it has been stated that regarding the question of payment of the salary is concerned it is beyond his jurisdiction to pay.
Learned counsel for the applicant-petitioner has submitted that though the applicant-petitioner has been allowed to join the service but he was not been permitted on the attendance register nor the salary has been paid to him till date as per the directions of this court. It is settled law that mere filing of counter affidavit, review petition and the appeal etc. doe not entitle the opposite party to take the same as a ground for disobedience of any order passed by the court. I also find that the opposite parties have not sought for any modification or review of the order alleged to have been flouted and therefore, cannot take this plea that they do not have the jurisdiction or the authority to comply with the directions of this court. Rightness or wrongness of the order cannot be urged in the contempt proceedings. Right or wrong order has to be obeyed and flouting of the said order renders the opposite party liable for contempt as has been laid down in the case of the Prithawi Nath Ram v. State of Jharkhand and others reported in , AIR 2004 Supreme Court 4277. It is also settled law that financial crunch is also no ground for not complying with the directions issued by the Court. In view of the same, the opposite party No. 3, who is present in person today in court, shall appear on 18.4.2005 and on that date the charges shall be framed against him.
Learned counsel for the opposite party No. 3 in consultation with him has prayed for fixing 18.4.2005 by which date he will file an affidavit of compliance.
Learned counsel for the applicant-petitioners prays for and is allowed a week''s time to file a reply to the counter affidavit filed on behalf of the opposite party No. 3.
List this case on 25.4.2005."
Today, Shri Rajeev Ranjan Singh, Executive Officer is present in court and has filed an application for exemption and also an application to dismiss the contempt petition being time barred.
It is common ground that till date the order of the writ court has yet not been complied in its entirety.
Two defences has been raised, firstly, that Chairman was not the appointing authority and, secondly, until and unless the State Government permits, the salary cannot be released.
A uncontroverted affidavit dated 9.11.2004 has been filed by the applicant annexing copies of letters dated 4.9.1996 and 29.8.1997 whereby the Secretary of the Government and Director Local Bodies have issued directions to the Nagar Palika Parishad, Maharajganj through the Executive Officer to forthwith comply with the judgment of the writ court, thus, the second defence is not available to Shri Singh as the State Government has already directed him to comply with the order. So far as the first defence is concerned that has already been considered in the writ petition and cannot be re-agitated in contempt proceedings.
It is not denied that Shri Singh is the Drawing and Disbursing Officer of the Nagar Palika Parishad, Maharajganj and thus, he was empowered to release the salary, both current and arrears to the applicant.
Learned counsel for the opposite party has however contended that the Special Appeal has been admitted, but he does not deny that no interim order has been passed though an application was made, thus, mere pendency of the Special Appeal would not empower the opposite party to deliberately and willfully violate the positive directions of the writ court (see Dr. H. Phunindre Singh and others V.K.K. Sethi and another[, 1998(8)S.C.C. 6401]).
When this matter was taken up on 25.4.2005 it was heard in detail and when the court was about to convict Sri Rajiv Ranjan Singh, his counsel stated that he may be given 48 hours to comply with the writ courts'' order, thus giving one more chance the matter was posted for today.
Today, an affidavit termed as compliance affidavit sworn by Sri Singh has been filed. The averments firstly justify non-compliance of the order on various grounds which were never raised before the writ court or have been dealt by it. Secondly, it has been alleged that as the applicant is not available at his place of work and in fact he is not working, therefore, a cheque of Rs. 5,952/- could not be delivered. It is also urged that the cheque can be handed over in court. However, this is not the entire payment which has to be made under the writ order and yet still further time is being sought to seek release of grant from the State Government. This aspect has already been dealt by me in the body of the earliest part of the order. By the conduct of Sri Singh, it is apparent that he has taken up a defiant stand and is creating defences for himself but is not complying with the order.
The question of apology appears to be redundant in this case because it is only a empty formality without any real repentance shown for a non-compliance which is continuing till date. Further, there cannot be a justification and apology together as both are incompatible (see Hoshiar Singh and another V. Gurbachan Singh and others , A.I.R. 1962 S.C. 1089), therefore, the apology is rejected.
On the question of sentence learned counsel for Mr. Singh states that his client has already sent a fax to the State Government for release of the grant and further time may be granted. After examining the facts of this case and the arguments of the parties, it appears to be a case of fine as it is a continuous contemptuous attitude and stand which has not been watered down even after being given sufficient opportunity.
For the reason given above Sri Rajiv Ranjan Singh Executive Officer, Nagar Palika Parishad Maharajganj, is hereby found guilty under section 12 of the Contempt of Courts Act and on the facts of this case he is sentenced to one month simple imprisonment to be carried out forthwith. He is also fined a sum of Rs. 2,000/- payable within 15 days from today and in case of default he would further undergo 15 days simple imprisonment.
The Nazir of this court is directed to take Sri Rajiv Ranjan Singh, Executive Officer, Nagar Palika Parishad, Maharajganj, forthwith into custody and to send him to Jail through the Chief Judicial Magistrate, Allahabad.
A oral prayer has been made that the operation of the sentence be stayed and he may be allowed to file appeal. No application has been made and this prayer ought not be considered orally. Even otherwise, this is such a case where the court should not show any mercy whatsoever. Thus the prayer is rejected.
List again on 19.5.2005."
In the facts and circumstances of this case, noticed above crystalate that the appellant admittedly has knowingly, willingly and deliberately not complied with the order of this Court in spite of repeated opportunities having been granted by the Court in their magnanimity to him.
On an overall consideration of the facts and circumstances and various orders noted in the judgment above, we are of the considered view that this contempt appeal is liable to be dismissed also for the reasons that the appellant had been in jail and had undergone sentence as is apparent from the order dated 12.10.2006 passed in Writ Petition No. 56848 of 2006 for non compliance of the order.
For the reasons stated above, the contempt appeal is dismissed.
Writ Petition No. 50848 of 2006
This writ petition has been preferred by Rajeev Ranjan, Tax Inspector, Nagar Palika Maharajganj and is connected with bunch led by Special Appeal No. 1447 of 2006 - Chairman/Administrator, Nagar Palika Parishad v. Rajeev Ranjan & Ors..
None appears for the petitioner to press this writ petition though the case has been called is revised list. Sri S.C. Dwivedi, learned counsel for the respondent is present.
The writ petition is accordingly dismissed for want of prosecution.
Interim order, if any, stands vacated.
Thus, in conclusion, Special Appeal No. 1447 of 2006 (supra) is dismissed, Restoration Application No. 177728 of 2005 in Special Appeal No. 226 of 1995 (supra) is rejected, contempt appeal No. 06 of 2005 (supra) and Writ Petition No. 50848 of 2006 (supra) are dismissed.
No orders as to costs.