Poonam Singh vs Vinay Prakash Singh, Chief Post Master General, U.P. Circle, Lucknow

Mohan Pyare, Member (A)

Heard Shri A.D. Singh, learned counsel for the petitioner and Shri S.C. Mishra, learned counsel for the respondents on Recall Application No.3480 of 2023 in Contempt Petition No.51 of 2019 in OA No.691 of 2014.

The present Recall Application No.3480 of 2023 has been filed by the applicant to recall the order/judgment dated 31.08.2023 passed in Contempt Petition No.51 of 2019 (Smt. Ponam Singh Vs. Vinay Prakash Singh). The contempt petition No.51 of 2019 was filed for non compliance of the order/judgment dated 11.09.2018 passed in OA No.691 of 2014. The operating portion of the judgment passed in OA No.691 of 2014 is reproduced as below :-

“17. In view of above discussions, we, remit the case to the respondent No. 2 to examine if the claim that the applicant’s seniority w.e.f. 01.01.2006 has been accepted by the respondents by passing any earlier order passed by the respondents and if the applicant’s seniority w.e.f. 1.1.2006 has been accepted by the respondents earlier, then the candidature of the applicant for the LDCE for the Postman in 2012 should be restored and subsequent steps like declaration of her result etc. as per the rules applicable for the LDCE-2012 for the Postman shall be taken for the selection of the applicant on merit. The respondent No. 2 shall pass appropriate speaking and reasoned order in this regard within three months from the date of receipt of a certified copy of this order and a copy of such speaking order shall be communicated to the applicant.

The applicant is also given liberty to file a representation addressed to the respondent No. 2 through proper channel with advance copy to the respondent No. 2, enclosing a certified copy of this order and documents relied upon by the applicant in support of her claim of seniority w.e.f. 01.01.2006 and for eligibility for LDCE – 2012 for the Postman within 15 days from the date of receipt of a copy of this order.

The OA is disposed of in terms of the directions in paragraphs 17 and 18 above. It is clarified that we have not expressed any opinion about merits of the applicant’s claims through this order. There is no order as to costs.

Aggrieved by the non implementation of the above order the contempt petition No.51 of 2019 was filed by the applicant. The same was closed on 31.08.2023 after hearing both the parties. The operating portion of the order passed in Contempt Petition No.51 of 2019 is reproduced as below :-

“In her representation dated 11.12.2018 the applicant has raised various allegations against the respondents and his office but nowhere she has mentioned anything about his joining on 01.01.2006. In Annexure A-3, the name of the applicant appears as the last candidate written by pen and in the remarks column it is Mentioned provisional. In Annexure -A-4 also it is mentioned that the applicant has been allowed to appear in the examination provisionally and her result will be declared once her candidature is clear. In various representations she has raised various allegations prevailing in the Office of the respondents. Here, it is not out of place to mention that this Tribunal is not the relevant forum to look into such allegations. On critical and minute verification facts available in this file, it is reasonably concluded that the direction which was issued by this Tribunal to respondents have been reasonably complied with.

We have heard the rival submissions.

Learned counsel for the petitioner in Recall Application has submitted that the speaking order dated 02.05.2019 was neither passed by respondent No.2 (contemnor) nor with the approval of respondent No.2 (contemnor). No compliance has been made by Respondent No.2 (contemnor) and hence it is liable to be recalled. During the pendency of the contempt petition No.51 of 2019, the petitioner has filed MA No.1895 of 2022 under Section 340 Cr.Pc. for appropriate action against the respondents, which was pending till passing the order/judgment dated 31.08.2023 and no decision has been taken by this Tribunal in the above MA. The relevant documents available on record were not considered while passing the order dated 31.08.2023. Under the circumstances discussed above, the contempt proceeding was closed, therefore, this Recall Application is liable to be allowed and contempt petition be heard again.

Learned counsel for the respondents have strongly refuted the contention of the learned counsel for the petitioner by filing an objection citing the case of Rashid Khan Pathan decided by Hon’ble Supreme Court in Suo Moto Contempt Petition (Criminal ) No.2 of 2019 in which it is held that "An application filed by the contemnor No.3 Sh. Nilesh Ojha for recusal of justice Deepak Gupta was rejected on the same day i.e. on 4.5.2020. Interim Application Nos. 48480, 48482 and 48484 of 2020 were filed by the contemnor seeking recall of the judgment dated 27.4.2020. This court was of the opinion that the recall applications were not maintainable."

We have heard the rival submissions and verified the documents available on record.

The contempt petition No.51 of 2019 was heard in presence of both the learned counsels. Learned counsel for the petitioner Shri A.D. Singh and Shri Anil Kumar Singh as well as learned counsel for the respondents Shri S.C. Mishra have argued in detail and after hearing both the learned counsels and on verification of records, the above contempt petition was closed.

Here it is relevant to quote one judgment passed by Hon’ble Apex Court in the case of Director of Education, Uttaranchal & others Vs. Ved Prakash Joshi and others passed in Civil Appeal No.3713 of 2005 decided on 15.07.2005. The operative portion of the aforesaid judgment is reproduced as below :-

“While dealing with an application for contempt, the Court is really concerned with the question whether the earlier decision which has received its finality had been complied with or not. It would not be permissible for a Court to examine the correctness of the earlier decision which had not been assailed and to take the view different than what was taken in the earlier decision. A similar view was taken in K.G. Derasari and Anr. V. Union of India and Ors. (2001 (10) SCC 496). The Court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment or order. If there was no ambiguity or indefiniteness in the order, it is for the concerned party to approach the higher Court if according to him the same is not legally tenable. Such a question has necessarily to be agitated before the higher Court. The Court exercising contempt jurisdiction cannot take upon itself power to decide the original proceedings in a manner not dealt with by the Court passing the judgment or order. Right or wrong the order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. While dealing with an application for contempt the Court cannot traverse beyond the order, non-compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible. In that view of the matter, the order of the High Court is set aside.

There is Full Court Judgment dated 11.06.2013 passed by CAT, Allahabad Bench in Civil Misc. Recall Application No.3242 of 2011 in Civil Misc. Contempt Petition No. 164 of 2007 in OA No.1111 of 2000 in which the following question was examined and decided in which it is observed that the recall application is not maintainable against an order passed in a contempt case decided on merits. The Bench has come to the conclusion that after pursuance of notice, in contempt petition the issue is between the Court and contemnor and that is why even in the absence of petitioner/counsel for the petitioner, the contempt petition is not dismissed in default or for non prosecution. This Full Bench came to the conclusion that recall application is not maintainable against an order passed in contempt petition decided on merit.

On the basis of above discussions, we find that there is no merit in the recall application No.3480 of 2023 and the same is liable to be dismissed. Accordingly, the Recall Application NO.3480 of 2023 is dismissed.