Mahipal Singh vs Shri T.Illaya Raja

This contempt petition under Article 215 of the Constitution of India has been filed complaining the non-compliance of order dated 10.11.2016 passed by this Court in W.P. No. 5823/2006. It appears that the petitioner was appointed as Panchayat Karmi and without removing him from the said post and without there being any vacancy, the Gram Panchayat, Badokhari, Block Lahar, District Bhind  passed  an  another  resolution  thereby  appointing  Pradeep Joshi/intervenor as Panchayat Secretary. The appointment order of the intervenor was challenged by filing the Writ Petition No. 5823/06. The writ petition was finally disposed of by this Court with the following observations:-

"Further, when Gram Panchayat had not convened any meeting and had not taken any steps for removal of the petitioner in terms of the provisions contained in para 7 then there was no vacancy then the Gram Panchayat could not have acted individually acting as a hand maid of the Collector who was not authorized to issue arbitrary directions.

Thus, in view of the aforesaid, whole selection process carried by the Gram Panchayat is set aside. Matter is remitted back to the Collector.

It is directed to provide opportunity of hearing and to take action in terms of the Panchayat Karmi scheme within a period of three months from the date of the order being passed today."

Thus, while finally deciding the writ petition this Court had given a specific finding that the Gram Panchayat, Badokhari has acted as a hand maid of the then Collector Bhind who was not authorized to issue arbitrary directions. Since the entire selection process was set aside, the matter was remitted back to the Collector for passing the order a fresh. This petition was initially filed making a submission that the contemnor has not taken any decision in compliance of the order dated 10.11.2016 passed in W.P. No.5823/2006. On 29.01.2019 the present Collector Shri Chotte Singh filed the compliance report and along with the compliance report the order dated 5.1.2019 passed by the present Collector was placed on record. In the said order, the present Collector has reproduced the order dated 15.09.2017 passed by the contemnor and made the following observations:-

"अभिलेख के अवलोकन से ऐसा प्रतीत होता है, की मेरे पूर्वाधिकारी के समक्ष या तो संपूर्ण तथ्य प्रस्तुत नहीं हो सके या वह इस तथ्य को परिशालन नहीं कर पाये कि माननीय उच्च न्यायालय द्वारा यदि प्रक्रिया को निरस्त कर दिया है, तो किसी अनुशंसा या प्रतिवेदन के आधार पर कलेक्टर उक्त प्रक्रिया को पुनः अंसपकंजम नहीं कर सकता ।''

and thereafter the present Collector came to the conclusion that once the recruitment process was already set aside by this Court, then the fresh recruitment process has to take place and it was ordered accordingly.

On 18.02.2019 Shri Prakhar Dhengula, counsel for the intervenor/Pradeep Joshi made a submission that since the present contempt petition was filed without disclosing that the then Collector Shri T. Illaya Raja had already passed order dated 15.09.2017 and the order dated 10.11.16 passed by this Court in W.P. No.5823/2006 was already complied with, therefore, this contempt petition is liable to be dismissed as not maintainable.

In reply to the submissions made by the counsel for the intervenor/Pradeep Joshi, it was submitted by the counsel for the petitioner that although the selection of the intervenor was already set aside by this Court but the contemnor has allowed the intervenor to continue to work on the post of Panchayat Secretary which is contemptuous. Accordingly, the counsel for the intervenor was directed to file an affidavit clarifying that till what date Pradeep Joshi (intervenor) had worked on the post of Panchayat Secretary. The intervenor has not chosen to file any reply in compliance of order dated 18.02.2019, therefore, this Court is left with no other option to draw an adverse inference against the contemnor as well as intervenor. By order dated 18.02.2019 itself the contemnor/ Shri T. Illaya Raja was directed to remain present before this Court on 25.02.2019. It appears that on 25.02.2019 the matter could not reach and accordingly it was taken on 26.03.2019. The following order was passed on 26.03.2019.

Learned counsel for the respondents has filed compliance report supported by an affidavit of one Chhote Singh who happens to be present incumbent on the post of Collector, Bhind. Shri Chhote Singh is not a party in this petition.

Moreso, the petition is directed against erstwhile incumbent on the post of Collector Bhind, T. Illaya Raja, and not against any other person.

It is informed by Shri Kirar who appears for respondent that the successor of respondent realizing the mistake committed by his predecessor passed a fresh order on 05.01.2019, which is in due deference of direction passed by this Court on 10.11.2016 in W.P.No.5823/2016.

However, it is seen from the record that the respondent despite having passed an order dated 15.09.2017 which apparently is contemptuous, has not even come forward to tender a word of apology.

The order dated 15.09.2017 reflects blatant disregard of the order of this Court and therefore, is prima facie contemptuous.

Respondent Shri T.Illaya Raja (whatever office he holds today) is directed to appear personally before this Court to explain as to why he be not punished for contempt, failing which coercive steps shall be taken against him.

Registry is directed to communicate this order to Shri T.Illaya Raja (IAS).

Let respondent appear on 4th of April, 2019."

Thus, this Court by order dated 26.03.2019 has already come to a conclusion that the order dated 15.09.2017 passed by the contemnor is apparently contemptuous and he has not even come forward to tender a word of apology. It is further observed that the order dated 15.09.2017 reflects blatant disregard of the order of this Court and therefore, is prima facie contemptuous. Accordingly, the contemnor Shri T. Illaya Raja was directed to appear personally before this Court to explain as to why he be not punished for contempt failing which coercive steps shall be taken against him.

Today, the contemnor has filed his reply and has tendered unconditional apology. In the apology it is mentioned that the order dated 15.09.2017 was forwarded to the learned Government Advocate for preparation of the compliance report and after going through the order dated 15.09.2017 the Government Advocate was of the view that the order could have been drafted properly but since the contemnor was already transferred from the post of Collector Bhind therefore he could not rectify his mistake. However, his mistake has been rectified by the successor Collector by order dated 5.1.2019 and the secretarial power of the intervenor namely Pradeep Joshi have been withdrawn and the Gram Panchayat has been directed to initiate proceedings for appointment of Panchayat Karmi in the light of the prevailing policy.

During the course of the arguments also the counsel for the contemnor as well as contemnor himself tendered their unconditional apology and submitted that the order dated 15.09.2017 could have been betterly drafted and should have been passed in accordance with law.

Considered the submissions made by the counsel for the contemnor as well as the contemnor himself. So far as the order dated 15.09.2017 passed by the contemnor is concerned, it is clear that it was not in accordance with the directions given by this Court by order dated 10.11.2016 passed in W.P. No.5823/2006. Even the contemnor and his counsel have admitted that it could have been betterly drafted. However, neither the counsel for the contemnor nor the contemnor himself could explain that when the selection of the intervenor was already quashed by this Court, then how the intervenor was allowed to continue to hold the post.

Further this Court by order dated 26.03.2019 has also held that the order dated 15.09.2017 passed by the contemnor is apparently contemptuous because it reflects blatant disregard of the order of this Court.

From the reply submitted by the contemnor, it is clear that even after the selection of the intervenor was quashed by this Court by order dated 10.11.2016 by holding that the subsequent recruitment process was not in accordance with law but the contemnor by order dated 15.09.2017 allowed the intervenor to continue to work on the post of Panchayat Secretary. Although, the intervenor has not filed an affidavit to clarify that till what date he was allowed to continue to work but it is apparent from the reply submitted by the contemnor that the secretarial powers of the intervenor were withdrawn only after order dated 5.1.2019 was passed by the successor of the contemnor. Thus, it is clear that intervenor was unauthorizedly allowed to work from 10.11.2016 till 5.1.2019 on the post of Panchayat Secretary, Gram Panchayat, Badokhari, Block Lahar, District Bhind. Thus, it is clear that in an illegal manner the intervenor has been allowed to withdraw the salary and other emoluments of the post of which he was not entitled. Therefore, the State Government may consider the recovery of the salary as well as emoluments paid to the intervenor/Pradeep Joshi. Since Pradeep Joshi had worked therefore the State may also consider to recover the entire amount of salary and emoluments from the salary of the contemnor.

Let a decision in the regard be taken within a period of three months from today.

So far as contemptuous nature of the order dated 15.09.2017 passed by the contemnor as observed by this Court by order dated 26.03.2019 is concerned, the counsel for the contemnor as well as the contemnor himself has tendered their unconditional apology repeatedly.

Under these circumstances, considering the future of the contemnor as well as that the successor of the contemnor has also criticized the order dated 15.09.2017 passed by the contemnor, this Court at this stage is not inclined to pass any order of punishment. However, in order to avoid the repetition of incident of similar in nature, the Chief Secretary, State of Madhya Pradesh, Bhopal is directed to keep the copy of this order along with the copy of the order dated 5.1.2019 passed by Collector Bhind in Case No. 04/18-19/B-121 in the service book of the contemnor.

The Registry is directed to immediately send the copy of this order along with copy of order dated 5.1.2019 passed by the present Collector, District Bhind which is annexed alongwith the compliance report of the present Collector to the Chief Secretary, State of M.P., Bhopal for immediate compliance within a week.

With the aforesaid observations, the contempt petition is finally disposed of.