Prahallad Kumar Deb vs Rebeca Bilung, O.A.S

Biraja Prasanna Satapathy, J

This matter is taken up through hybrid mode.

Heard learned counsel appearing for the Parties.

Learned counsel appearing for Opp. Party-Contemnor produced copy of order dtd.29.04.2024 so passed by this Court in Writ Appeal No. 886 of 2024. Order dt.29.04.2024 is reproduced hereunder:-

“2. The present intra-Court appeal has been filed putting to challenge an order dated 30.01.2024 passed in W.P.(C) No.25677 of 2020.

This matter was not listed today in the cause list. At about 3.00 P.M., Mr. Ashis Kumar Mishra, learned counsel for the appellants made an urgent mention before this Bench submitting that in a contempt proceeding, i.e., CONTC No.2590 of 2024 an order has been passed by a learned Single Judge of this Court directing the Superintendent of Police, Deogarh for production of the Additional District Magistrate, Deogarh for disobedience of this Court’s aforesaid order dated 30.01.2024. He informed this Court that the said contempt petition was not listed today and came to be notified, to be taken up at 2.00 P.M., whereafter the said order has been passed. Copy of the said order passed by the learned Single Judge is not available. It has been brought to the Court’s notice that the Additional  District  Magistrate,  Deogarh  has  been  appointed  as  a Nodal Officer by the Election Commission of India for the ongoing General Election-2024 of Deogarh District, for which nomination process has begun today.

We shall go into the merits of the appeal later.

On  our  request,  Mr.  Ashok  Kumar  Parija,  learned  Advocate General has appeared and has brought to our notice a Supreme Court’s decision in the case of Modern Food Industries (India) Ltd. and another v. Sachidanand Dass and another, reported in 1995 Supp. (4) SCC 465.

List this matter on 06.05.2024, to be taken up at 10.30 A.M. In the meanwhile, the proceedings of CONTC No.2590 of 2024 shall remain stayed.”

In view of the order passed by the Division Bench in Writ Appeal No. 886 of 2024, this Court adjourns the matter to week commencing 13th May, 2024. While adjourning the matter to the date fixed, it appears certain facts have not been properly placed before the Division Bench by the engaged counsel in Writ Appeal No. 886 of 2024.

This Contempt Petition was filed seeking compliance of order dtd.30.01.2024 so passed in W.P.(C) No. 25677 of 2020. Vide the said order, the order passed by the Opp. Party-Contemnor on 09.10.2020 was set aside and Opp. Party No. 3 was directed to allow the Petitioner to continue as Principal in-charge of the College in terms of order dtd.19.10.2011. As the said order was not complied, the present contempt petition was filed against the Opp. Party-Contemnor.

Since in all the cases where Opp. Party-Contemnor is a Govt. official, State is appearing on behalf of Opp. Party-Contemnor, this Court taking into account the nature of order passed by this Court on 30.01.2024 passed an order on 18.04.2024 to the following effect:-

“2. Let an extra copy of the Contempt Petition be served on learned State Counsel in course of the day. He is directed to obtain instruction in the matter.

As requested, list this matter on 26.04.2024.”

6.1. On the face of the order passed by this Court on 18.04.2024 when no document was produced showing compliance of the order by Opp. Party-Contemnor, the following order was passed on 26.04.2024:-

“3. Taking into account the order passed by Opp. Party-Contemnor on 18.04.2024, he is directed to appear before this Court on 29th April, 2024.

List this matter on 29th April, 2024.

Free   copy   of   the   order   be   provided   to   Mr.   M.K. Balabantaray, learned Addl. Govt. Advocate for compliance.”

6.2. In spite of the order passed on 26.04.2024, when the matter was not listed on 29.04.2024, considering the mention made by the learned counsel for the Petitioner, the matter was listed with publication of a special list by the Registry with the notice that the matter will be taken up at 2.00 P.M.. Accordingly, the matter was taken up on 29.04.2024 at 2.00 P.M..

6.3. On 29.04.2024, when this Court took up the matter, Opp. Party-Contemnor being represented by Mr. A.K. Mishra, Advocate produced a memo containing the letter issued by Opp. Party-Contemnor on 29.05.2024, which reads as follows:-

“As the nomination process for the General Election-2024 is going on today and as I am the Nodal Officer for General Election-2024 of Deogarh District for which I beg to apology before the Hon’ble Court not to appear/present today and for which I pray to post the matter in other date.”

6.4. Since in all the case where Govt. Official is the Contemnor, State Counsel are appearing for Opp. Party-Contemnor, this Court while not accepting the stand taken by the Opp. Party-Contemnor in her letter dtd.29.04.2024, passed the following order on 29.04.2024:-

Though this matter was not in today’s list, but on being mentioned by the learned counsel for the parties, the matter was taken up today.

Heard.

This Court vide order dt.26.04.2024 directed for personal appearance of Opp. Party-contemnor, who happens to be Addl. District Magistrate, Deogarh, he being a Government Officer, he should have entered his appearance through the State Counsel. But Mr. Ashis Ku. Mishra, learned counsel contended that he has been authorised to appear on behalf of Opp. Party-Contemnor and he also produced a letter issued by Opp. Party-contemnor in his capacity as Addl. District Magistrate, Deogarh vide letter No.2764 dt.29.05.2024 indicating that Opp. Party as is the Nodal Officer for the General Election, 2024 for Deogarh district, he is unable to appear before this Court in terms of the order.

This Court is not inclined to accept the stand taken in letter dt.29.05.2024.

However, this Court directs Opp. Party-contemnor to file an affidavit justifying his appearance through a private counsel, though he happens to be a Government Officer in the capacity of Addl. District Magistrate, Deogarh.

This Court further directs the learned State Counsel to cause production of opp. Party-contemnor before this Court on 30.04.2024 at 10.30 A.M.

Free copy of this order be provided to Mr. M.K. Balabantaray, learned Addl. Govt Advocate for compliance.”

6.5. In order dt.29.04.2024 no direction was ever issued to cause production of the Opp. Party-Contemnor with the help of Superintendent of Police, Deogarh. But as found from the order dtd.29.04.2024 so passed by the Writ Appellate Court, it is found that a wrong submission was made by the engaged counsel that this Court passed an order directing for production of Opp. Party-Contemnor through Superintendent of Police, Deogarh. It is also found from the record that at no point of time it was brought to the notice of this Court either by the State Counsel or by the engaged counsel on behalf of Opp. Party-Contemnor that a Writ Appeal has been filed against the order in question in W.A. No. 886 of 2024. However, relying on the wrong submission made by the engaged counsel in Writ Appeal No. 886 of 2024, that this Court has passed an order to produce the Opp. Party-Contemnor with the help of Superintendent of Police, Deogarh and basing on such submission the matter was not only taken up but an order was passed on 29.04.2024 in W.A. No. 886 of 2024.

6.6. It is also to state that even though order passed by this Court on 29.04.2024 was provided to the learned Addl. Govt. Advocate at 3.30 P.M., but the same as found from the order passed by the Division Bench was not brought to the notice by the learned State Counsel when the matter was taken up.

In view of the same, this Court is of the view that the matter be placed before the Hon’ble Chief Justice for kind appraisal and to take appropriate decision in the matter. Registry is directed to do the needful.

List this matter on 13th May, 2024.

Later

Dt.30.04.2024

Learned Addl. Govt. Advocate produced copy of letter dtd.30.04.2024 so issued by the Directorate of Higher Secondary Education, Odisha showing reinstatement of the Petitioner as Principal-in-Charge of Women’s Higher Secondary School, Baliaberi, Dist-Deogarh in pursuance of order dtd.30.01.2024 of this Court. Copy of the communication dtd.30.04.2024 be kept in record.

List this matter on the date fixed.

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