Mohd. Rizwan vs Raja Bhanu Pratap, Basic Shiksha Adhikari

Devi Prasad Singh, J.—The present contempt petition u/s 12 of the Contempt of Courts Act has been preferred for non compliance of order dated 12.4.2005 passed in Writ Petition No. 4739 (S/S) of 2003.

Submission of learned Counsel for the Petitioner is that though in pursuance of order dated 12.4.2005, the Petitioner has been restored in service, but has not been paid salary of the period during which he was kept under suspension. Further submission is that the Petitioner is entitled for payment of salary from the date when suspension order was passed and from the date of judgment of this Court. He further submits that non payment of salary from 18.2.1986 to 12.4.2005 is flagrant violation of this Court. Much emphasis has been laid that since the suspension is not punishment and it has been revoked by the Court, hence the Petitioner is entitled for payment of salary from 18.2.1986.

On the other hand, learned Counsel for the Respondents submits that under the Fundamental Rule 54 of the Financial Hand Book, a decision has been taken with regard to salary, which has been filed alongwith counter affidavit. It is further submitted that while deciding the matter with regard to payment of salary, speaking and reasoned order has been passed and it cannot be set aside by the contempt court.

Once this Court held that after 11.3.2003, the suspension is not sustainable, then it makes out a case for commission of contempt on account of non payment of salary from 11.3.2003. The operative order of the judgment and order dated 12.4.2005 is reproduced as under:

The Petitioner was arrested by the police of police station Rudauli in case crime No. 144 under Sections 363, 366A/376 Indian Penal Code and later on by the judgment and order dated 11.3.2003 the Petitioner was acquitted in the said criminal case. A perusal of the suspension order reveals that the Petitioner has placed under suspension only on the ground that he was convicted in case crime No. 144 under Sections 363/366/376 Indian Penal Code. There was No. justification for the authorities to place the Petitioner under suspension after the decision dated 11.3.2003 in the said case. Once a person has been acquitted in a criminal case by the competent court his detention in the police custody on the basis of the FIR is of No. consequence and on that ground a person cannot be continued under suspension. The impugned suspension order dated 18.2.1986 is legally not sustainable beyond 11.3.1986, the date on which the Petitioner was acquitted in the criminal case.

Under the above facts and circumstances, the writ petition is allowed and a writ in the nature of certiorari is issued quashing the impugned suspension order dated 18.2.1986. However, it will be open for the opposite parties to initiate the departmental proceedings against the Petitioner in accordance with law.

In the circumstances, there shall be No. order as to costs.

A plain reading of the aforesaid order shows that a finding has been recorded that suspension order is not sustainable beyond 11.3.2003. Hence, prima facie, Respondents should have paid salary without taking into account the Fundamental Rule 54B of the Financial Hand Book from 11.3.2003.

Learned Counsel for the Basic Shiksha Adhikari, on the basis of instructions received from G.S. Niranjan, B.S.A., Faizabad, submits that salary from 11.3.2003 shall be paid within a month.

With regard to consequential relief for payment of salary from 18.2.1986, the application moved by the applicant shows that this Court not only extended the consequential benefit while deciding the case by order dated 12.4.2005. In the absence of any direction issued by this Court for payment of salary, the Respondents have not committed any act against the direction of the Court or violation of judgment. Now the question cropped up that the Respondents have right to take decision adverting to Fundamental Rule 54 of the Financial Hand Book or not, this question cannot be adjudicated in the contempt proceedings. The proper course to the Petitioner is to approach the appropriate Forum or prefer writ petition. The contempt judge does not possess power to make observation with regard to decision taken by the authorities in pursuance to statutory provisions. It is settled law that vague order in the absence of any direction issued by the High Court, the authority may take decision just and proper decision on their own. For any illegality committed by the authorities, aggrieved party have opportunity to approach the appropriate Forum. To such act, No. proceeding u/s 12 of the Contempt of Courts Act may be initiated or officer may be punished.

In view of above, I am of the view that the Respondents has not violated the judgment and order dated 12.4.2005 of this Court while passing the order dated 10.12.2010 subject to modification that the Petitioner shall be paid salary from 11.3.2003.

In view of above, the contempt petition losses its efficacy and is accordingly dismissed with liberty to approach the appropriate Forum. Notice, if any, is discharged.