Om Prakash vs Arun Chand Pandey

D.V. Sharma, J.

The instant Contempt Appeal is directed against the order dated 12th May, 2005 passed by Hon''ble the Contempt Judge in Criminal Misc. Case No.1189 (C) of 2004.

Before entering into the controversy it would be expedient to have a factual matrix of the appeal which is as under:

Respondent, who was engaged as Daily Wager, had filed writ petition No.1329 (S/S) of 1996 for regularization of his services. Consequently he was appointed as a Class III employee with a minimum payscale on work charge basis. Thereafter he preferred another writ petition bearing No.6846 (S/S) of 1999 for regularization of his services as Class III employee. Thereafter he filed other writ petition bearing No.8148 of 1999 (S/S), which was allowed vide order dated 17.2.2004 quashing the order passed by opposite party No.3 and a mandamus was issued to pay to the petitioner the payscale of Stenographer. He was further allowed to continue on the post of Stenographer with all consequential benefits. Being aggrieved by the aforesaid judgment and order Special Appeal No.312 of 2004 was preferred with an application for interim relief alleging therein that the plea of manipulation and fabrication of the record have not been considered by the Hon''ble Single Judge but the appeal and the interim relief application remained pending and in the meantime the respondent moved Contempt Petition registered as Criminal Misc. Case No.1189 (C) of 2004. Consequently, on 12.5.2005 Hon''ble Contempt Judge as a last opportunity granted a week''s time for compliance of the judgment and order dated 17.2.2004 as already by order dated 25.4.2005 opposite parties were directed to appear before this Court for framing of the charges.

Aggrieved by the aforesaid order the instant appeal has been preferred on the following grounds:

�A Because the Hon''ble Single Judge has failed to appreciate that on 1st October, 2004, the Hon''ble High Court was pleased to defer the hearing for two months on the ground that the Special Appeal is pending against the judgment and order dated 17.2.2004 passed by Hon''ble High Court in writ petition No.6846 (S/S) of 1999 in re: Arun Chand Pandey v. State of U.P. and dothers.

B Because the Hon''ble Judge has failed to appreciate that the efforts were made by the appellant and the Special Appeal was listed on various dates but could not be taken up due to rush of work or paucity of time.

C Because the Hon''ble Single Judge has erred in law in ignoring the settled law that the respondent (petitioner) had obtained the orders from this Hon''bel Court on the basis of forge and manipulated documents.

D Because the Hon''ble Single Judge erred in law in ignoring the settled law declared by the Hon''ble Supreme Court of India reported in 2005 Lab. Industrial Cases State of Bihar v. Bihar M.S.F.S.K.K. Mahasan, wherein it has been held by the Hon''ble Apex Court of India, that salary could not have been disbursed to such employees whose appointments were in serious doubt.

E Because the Hon''bel Supreme Court of India in the aforesaid case has appreciated that the facts that non disbursement of salary to such employees whose appointment itself were in serious doubt, cannot be held to be a deliberate contempt, which deserves a punitive action.

F Because it is a settled law declared by the Hon''ble Supreme Court of India in a series of cases that the contempt hearing should be deferred till the disposal of the application for interim relief pending with Special Appeal.

G Because the Hon''ble Single Judge, erred in law in proceedings with the contempt matter ignoring the fact that the petitioner had obtained the judgment from this Hon''ble Court on the basis of forge and fabricated documents and a Special Appeal has already been filed along with an application for Interim Relief.

H Because in case the respondent/petitioner, allowed to join his duties, under the threat of proceedings of contempt, the Stay Application pending with the Special Appeal would be rendered infructuous.

I Because the Hon''ble Single Judge, has not recorded any reason in the interim order dated 12.5.2005.

J Because even otherwise the order dated 12th May, 2005 passed by Hon''ble Single Judge in Crl. Misc. Case No.1189 (C) of 2004, is contrary to the provisions of law and is liable to be set aside.�

We have heard learned counsel for the parties at length and perused the entire record. It is not disputed between the parties that the learned Contempt Judge has not fixed the date for framing of the charge without giving an opportunity to the appellant. It has also not been disputed that three opportunities were given to make compliance of the order but the order was not complied with. Consequently on this ground the appeal has no force and it is not expedient in the interest of justice to set aside the order because after giving sufficient opportunity to the appellant the order was passed. Consequently at this stage it cannot be gathered from bird eye view that the learned Contempt Judge erred in law in not giving an opportunity of being heard to the appellant or has not provided sufficient opportunity to the appellant to ensure compliance of the judgment. The discretion that was exercised by the Contempt Judge on the ground of opportunity or on the ground that no sufficient opportunity was given cannot be looked into.

Learned counsel for the respondent has raised an objection that the present appeal is not maintainable. In this context the attention of this Court was invited on a decision of the Hon''ble Apex Court in Midnapore Peoples Coop. Bank Ltd. and others v. Chunilal Nanda and others, (2006) 5 SCC 399, in which the Hon''ble Supreme Court considered that in such type of cases the contempt appeal is not maintainable. For convenience para11 of the aforesaid ruling is reproduced as under:

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

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.

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 acquiting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.

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.

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 appelable under Section 19 of CC Act. The only exceptions where such direction or decision is incidental to or inextricably connected with the order punishing for contempt in which even the appeal under Section 19 of the Act, can also encompass the incidental or inextricably connected directions.

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 intracourt 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).�

Our attention was further drawn to the decision of a Division Bench of this Court in Contempt Appeal No.17/205, Devesh Kumar Mishra and others v. Sushanshu Dhar Dwivedi, in which the Division Bench of this Court has considered various aspects and ratio laid down by the Hon''ble Apex Court and took a view that against initiation of proceedings under Section 12 of the Contempt of Courts Act or for framing of the charge, the appeal is not maintainable.

Considering the totality of the circumstances we are of the view that it is all the time open for the appellant to take his defence that has been taken before us before the Contempt Judge. In view of the proposition of law referred to above, we are in full agreement with the decision of the Division Bench which has been passed relying upon the judgment of the Hon''ble Apex Court and maintain that no appeal lies against the order of framing of the charge.

Looking to the case from all or any angle the impugned order does not suffer from any illegality or infirmity. The appeal is devoid of any merit and is, therefore, dismissed.

(Appeal dismissed)