Sajan T. Sunny vs Biswanath Sinha (Deleted And Substituted)

P.G. Ajithkumar, J

The petitioner was a Commercial Tax Officer in the Taxes Department, State of Kerala. He retired from service on 31.05.2016. While he was working as Sales Tax Officer, Perumbavoor a disciplinary proceedings was happened to be initiated against him. Since there occurred delay in completing the disciplinary proceedings, he approached Kerala Administrative Tribunal by filing O.A.(EKM) No.344 of 2015, where one of his prayers was to quash the charges against him and grant him promotion to the post of Assistant Commissioner (Commercial Taxes). That relief was declined. Hence, he filed O.P.(KAT) No.65 of 2016 before this Court, which was disposed of by the judgment dated 27.05.2016. This Court did not interfere with the orders of the Kerala Administrative Tribunal, however, the following direction was issued:

“11. xx xx Thus, while declining interference, we deprecate the course and proceedings pursued by the concerned officers and the way in which they have dealt with Annexure A16 order passed by the Tribunal. The disciplinary enquiry shall be finalized, as ordered by the Tribunal, based on which, the eligibility of the petitioner (which already stands declared, as given in paragraph 10 of Ext. P2 reply statement), shall be appreciated and consequential orders/steps shall be taken with regard to the claim for promotion and for the disbursement of the eligible benefits flowing therefrom, without any further delay.”

The petitioner has filed this Contempt Case alleging that the respondent did not obey the said direction and thereby liable for punishment for the contempt of this Court under Article 215 of the Constitution of India and Section 12 of the Contempt of Courts Act, 1971.

As per the order in I.A.No.1 of 2022, the petitioner was allowed to amend the averments in the petition and as per the order in I.A.No.2 of 2022 allowed to correct the cause title.

The respondent entered appearance and filed a counter affidavit. He took the stand that the direction in Annexure A judgment dated 27.05.2016 was duly complied with and that the Contempt Case is barred by limitation as it was filed after the period prescribed under Section 20 of the Act.

The petitioner filed a reply affidavit explaining the facts and circumstances leading to the filing of the Contempt Case. It is explained that rejection of his claim for promotion solely on the ground that a vigilance case is pending before the Vigilance Court is untenable and against the direction in Annexure A judgment. Having the petitioner been found eligible for promotion by the Departmental Promotion Committee (D.P.C.), it was quite illegal for denying him promotion on such a ground. It was when he received Annexure H letter dated 10.08.2021, he came to know that his right to get promotion stood rejected. That being the cause of action for initiating contempt proceedings, there is no bar of limitation.

Heard the learned counsel appearing for the petitioner and also the learned Government Pleader appearing for the respondent.

Section 20 of the Act says that no court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed. The learned counsel appearing for the petitioner would submit that only when Annexure H letter was received, there arose cause of action for initiating contempt proceedings against the respondent. Annexure H is a letter sent by the Secretary to Government, Taxes Department to the petitioner informing him that since the vigilance case initiated against him is pending trial before the Vigilance Court, Muvattupuzha, admissible pension and D.C.R.G. would be released to him only after the conclusion of the said case. There is nothing in Annexure H with regard to the denial of his right to promotion. The direction in Annexure A was that the disciplinary enquiry against the petitioner should be completed within a period of four months as ordered by the Kerala Administrative Tribunal, and on the basis of that, his eligibility for promotion shall be appreciated and consequential orders/steps should be taken with regard to the claim for promotion and for the disbursement of eligible benefits flowing therefrom, without any further delay. It is his contention that declining of his claim for promotion and also disbursement of benefits was intimated to him only by Annexure H letter dated 10.08.2021 and hence the contempt proceedings which was initiated within one year from the said date is within time.

The learned Government Pleader, per contra, contended that the petitioner was intimated as early as on 10.08.2018, that the D.P.C. took the decision on 28.06.2018 declining his claim for promotion till the finalisation of the vigilance case pending against him and therefore, this contempt case filed in December 2021 is beyond the period of limitation.

The contempt proceedings was initiated as per the provisions of Article 215 of the Constitution of India, and therefore, it is not circumscribed by the limitation prescribed in Section 20 of the Act is one of the contentions raised by the learned counsel appearing for the petitioner. In Pallav Sheth v. Custodian and others [(2001) 7 SCC 549] the question came up for consideration before the Apex court was whether or not by imposing a period of limitation as provided in Section 20 of the Act would stultify the powers of the High Court Under Article 215 of the Constitution of India. The three Judges Bench observed that the Apex Court always frowned upon the grant or existence of absolute or unbridled power. When jurisdiction under Article 226 of the Constitution of India is exercised, the High Courts are expected to act in accordance with law, and by applying the said criteria the power under Article 215 should be exercised in consonance with the provisions of a validly enacted law. Accordingly, the Apex Court held that the provisions under Section 20 of the Act do not stultify the powers of the High Court under Article 215 of the Constitution of India. Of course, if the act of contempt is a continuous or recurring one, the position is different and in such cases bar of the period of limitation for initiating the action for contempt of court may not be attracted as in other cases. The said principle was reiterated by the Apex Court in Maheswar Peri and others v. High Court of Judicature at Allahabad, through Registrar General [(2016) 14 SCC 251].

This Court in Dinesh Kumar G.P. v. Biswas Metha IAS and others [ILR 2019 (4) Ker.780] was confronted with the question whether contempt petition filed under Article 215 of the Constitution of India for initiation of contempt for disobedience of a judgment in a Writ Petition should be filed within one year as prescribed in Section 20 of the Contempt of Courts Act. This Court after referring to the law laid down in Pallav Sheth (supra) held that action must be initiated, either by filing of an application or by the court issuing notice suo motu, within a period of one year from the date on which the contempt is alleged to have been committed. Therefore, the period of limitation stipulated in Section 20 of the Act applies to the contempt proceedings initiated under Article 215 of the Constitution of India.

The allegation of the petitioner is that the respondent did not oblige the directions in Annexure A judgment and the claim of the petitioner for promotion was not timely considered, nor his eligible benefits disbursed. It is the said act of disobedience is alleged to be contumacious and for which the respondent is sought to be punished under Section 12 of the Act.

Annexure F was sent to the petitioner on 10.08.2018. The decision taken by the D.P.C. on 28.06.2018 that the claim of the petitioner for promotion would be considered only after finalisation of the vigilance case pending against him, was intimated vide Annexure F. A perusal of it would show that the representation put in by the petitioner dated 03.05.2018 was specifically considered by the D.P.C. A copy of the representation is Annexure E. What has been required in Annexure E representation was to take action as per the directions contained in Annexure A judgment dated 27.05.2016. When the Department took such a decision on 28.06.2018 and intimated the petitioner as per Annexure F dated 10.08.2018, he got notice that his claim for promotion was declined. It is that decision, if at all, that amounted to contempt of court. Therefore, going by the case of the petitioner itself, the alleged act of disobedience was committed as early as 28.06.2018. The contempt proceedings should have been initiated within one year from the said date. The present petition was filed much after that date and therefore it is barred by limitation as provided in Section 20 of the Act.

On the merits also, the contentions of the petitioner is untenable. The direction was to consider the claim of the petitioner for promotion. Of course, the principle laid down by the Apex Court in State of Rajasthan v. B.K. Meena [(1996) 6 SCC 417] and Stanzen Toyotetsu India Private Limited v. Girish V. and others [(2014) 3 SCC 636] was highlighted in Annexure A judgment and the Department was alerted to bear in mind while considering the claim of the petitioner for promotion. There was no direction to the Department to grant promotion to the petitioner. It is the definite contention of the respondent that in the light of the provisions of Rule 28(7) of Kerala State and Subordinate Services Rules, 1958, the petitioner could not be granted promotion owing to the pendency of a vigilance case against him. Whether the said decision is correct or not, is not a matter that falls for consideration in this contempt proceedings. In obedience to the direction in Annexure A judgment dated 25.07.2016, disciplinary proceedings were concluded and the decision on the claim of the petitioner for promotion was taken as early as on 28.06.2018.

In  Commissioner/Secretary  to  Government, Education Department, J&K and others v. Mohd.Amin Waza and another [AIR 2021 SC 5039], the Apex Court held that when the direction of the High Court is to consider the case of the claimant for appointment on the post of a teacher against available vacancy and the claim having been considered but rejected rightly or wrongly, there would not be any disobedience of the directions. It was held that the “direction issued by the High Court as it was limited to consider the claim of the 1st respondent and the department having done so nothing further was required to be done. In any case, as such it would not be a case of willful disobedience of the direction given by the High Court.”

In the light of the aforesaid proposition of law laid down by the Apex Court, the allegations levelled against the respondent are insufficient to constitute an act of contempt. Inasmuch as the claim of the petitioner for promotion was considered and decision was taken, a willful disobedience cannot be inferred. Rejection of the claim by the Department cannot be regarded as an act of contempt. Accordingly, we hold that there is no reason for taking action for contempt against the respondent. The Contempt Case is therefore dismissed.