Duli Singh vs State of U.P. and Others

K.B. Asthana, C.J.—The Deputy Director of Education in the exercise of his appellate powers under the Intermediate Education Act had partially allowed the appeal of a Teacher, the effect of which was that the teacher''s dismissal was converted into the termination of his services from the College. Being aggrieved, the teacher filed a writ petition under Article 226 of the Constitution questioning the validity of the appellate order of the Deputy Director. In the writ petition the Manager of the College and the members of the Committee of Management were impleaded as opposite parties. At the preliminary hearing this Court finding that there was a prima facie case issued a rule nisi to the opposite parties and passed an interim order to the effect :-

The operation of the impugned order dated 6-3-1975 shall remain stayed meanwhile.

The order dated 6-3-1975 was the order of the Deputy Director of Education terminating the services of the teacher. After obtaining this order the teacher concerned approached the management of the College to allow him to resume his duties and to draw his salary according to the rules. The Manager did not pay any heed and even approached the District Inspector of Schools not to sanction the payment of salary. However, the District Inspector of Schools who under the rules is the paying authority sanctioned the payment of salary. The Manager showed cause against the interim order passed by this Court and submitted that the interim order did not direct the Management to reinstate the teacher and to take work from him and further submitted that the teacher having been suspended by the management earlier during the inquiry against him, the suspension would revive. The application of management for vacating the interim order was dismissed and the interim order was confirmed by this Court. Even after confirmation the manager did not permit the teacher to join duties. In these circumstances the teacher filed a petition purporting to be u/s 151 of the CPC for taking action against the Manager for disregarding the order of the Court. The learned Single Judge, who had passed the interim order called upon the Manager to show cause why he should not be dealt with for contempt of court for defying and disregarding the interim order of the Court. The Manager showed cause and contended that in not allowing the teacher to join duties he did not disregard or disobeyed any order of this Court and was not guilty of contempt of Court. This defence did not prevail and the learned Single Judge found the Manager guilty of contempt of this Court and imposed a fine of Rs. 500/- as punishment. The Manager has now filed this appeal u/s 19 of the Contempt of Courts Act.

2 The first point raised by the learned counsel for the appellant is that the order of the learned Single Judge was without jurisdiction inasmuch as the learned Judge who had passed the interim order and whose disregard was the subject matter of the contempt, himself could not have heard the case. There does not appear to be any tenability in this point. The Contempt of Courts Act by its Section 14 only permits the alleged contemner to request not to be tried by a Judge in whose presence or hearing the offence alleged had been committed. Here is not a case where the alleged act of contempt was committed in the presence or hearing of the learned Single Judge who tried the alleged contemner.

It was next urged that rule 19 of Chapter XVIII of the Rules of the Court was not complied with inasmuch as the papers were never placed before the Chief Justice as required by this rule. No doubt there has been a technical breach of the rule but that may have been because the application was headed u/s 151 of the CPC and not u/s 12 of the Contempt of Courts Act, 1971. Moreover, it has not been shown that any prejudice has been caused to the appellant.

Now coming to the merits, the submission was that the order of this Court to the effect "the operation of the impugned order dated 6-3-1975 shall remain stayed meanwhile" would only affect the power of the Management to formally issue a notice of termination on the teacher concerned in accordance with the order of the Deputy Director of Education and nothing more. It was submitted that the appellant as Manager had not issued any notice terminating the services of the teacher hence there had not been any defiance in this regard of the interim order passed by this Court. The learned counsel for the appellant pointed out that no positive order was passed by this Court as an interim measure for reinstating and for payment of the salary to the teacher. At best the order could be interpreted only as an order restraining the Manager and the management from terminating the services of the teacher. We think for recording a finding of guilt against the appellant in contempt proceedings a clear case must be made out that an order passed by the Court in its terms was defied, disobeyed and disregarded by the person on whom that order was served and for whom that order was meant. In the instant case there appears to be great tenability in the argument that there being no positive order for reinstating the teacher and for paying him his salary, if the appellant as a Manager thought that in the circumstances the suspension order revived, it cannot be said that the Manager would be guilty of contempt of Court. No doubt it can be argued that the implication of the interim older passed by the Court was to give all the benefits to the teacher as being in service to which he was entitled to but that is an arguable matter and we think the Manager would be entitled to the benefit of doubt. It is well settled that it is always open to an employer not to take work from his employee and the court can only compel the employer to pay the salary or remuneration agreed upon under the contract of service. Here the teacher who had made an application for drawing up contempt proceedings succeeded in getting his salary despite the attitude of the appellant. Thus the interim order of this Court passed in his favour pending the writ petition was in fact complied with. The Manager as employer could not be compelled by this Court to take work from the teacher. In this state of law by not allowing the teacher to take charge of his teaching duties in the College the appellant as Manager had not defied any order or disregarded any order of this Court. We, therefore, hold that the appellant was not guilty of contempt of Court.

The result is that this appeal succeeds. The order of conviction and sentence passed by the learned Single Judge is set aside and the application of the teacher for taking action for contempt stands dismissed. The fine, if paid, shall be refunded to the appellant.

In the circumstances of the case, there would be no order for costs.