State of U.P. vs Rajesh Pradhan

Heard Sri M.C. Chaturvedi, learned Chief Standing Counsel for the appellant and Sri B.N. Rai, learned Counsel appearing for the respondent.

By consent of the learned Counsel for the parties, this contempt appeal has been heard and is being decided finally.

This contempt appeal u/s 19 of the Contempt of Court Act, 1971 has been filed by the appellant against the judgment and order of learned Single Judge dated 22nd October, 2010 by which judgment the appellant has been convicted and sentenced.

Brief facts giving rise to this contempt appeal are; the respondent was working as constable in 42-B Battalion, P.A.C., Naini Allahabad. By an order dated 27th October, 1998 the respondent was dismissed from service against which order the respondent filed a writ petition being Writ Petition No. 40165 of 1999 praying for quashing the dismissal order. The writ petition was allowed by judgment and order dated 21st March, 2006. The operative portion of the judgment of learned Single Judge is as follows:

The counsel for the petitioner has made a statement upon instructions from the petitioner that in case the petitioner is reinstated in service, he will not claim any arrears of salary for the period he has not worked. In case, the petitioner submits and undertaking before the authority concerned, appropriate orders for reinstatement of the petitioner shall be passed within a period of six weeks from the date of furnishing a certified copy of this judgment along with the undertaking by the petitioner before the disciplinary authority. However, pay of the petitioner shall be protected and he shall be treated in continuous service, but will not be paid any arrears of salary. Further the period of absence will be treated to be leave without pay. In this view of the matter, the matter is not being sent back for awarding lesser punishment.

Writ petition is accordingly allowed. The impugned orders awarding punishment of dismissal and the orders confirming the same are set-aside. No order as to costs.

After the judgment of this Court dated 21st March, 2006, the respondent submitted an affidavit on 3rd May, 2006 in paragraph 1 of which it was stated that the deponent shall not claim any arrear of service or allowance from the date of dismissal till 21st March, 2006 during which he has not performed his duties. Against the judgment of learned Single Judge dated 21st March, 2006, permission was granted for filing special appeal before the appellate Court. The special appeal was filed against the said judgment, which was dismissed on 29th August, 2006 on the ground of delay of 87 days. After the special appeal having been dismissed, an application to recall the order was filed which too was rejected by the appellate Court on 17th November, 2006. The respondent on 7th September, 2006 filed a contempt application being Contempt Application No. 3695 of 2006. On 18th November, 2006 a letter was written by the Commandant to the Inspector General, P.A.C. Headquarters, U.P., Lucknow asking for appropriate directions so that orders of the Court be complied with and the Commandant be saved from contempt proceedings. The learned Contempt Judge passed an order on 21st December, 2006 observing that prima facie contempt has been committed of the order dated 21st March, 2006 and directed that the appellant either proceed to comply with the order forthwith or be personally present before the Court on the next date for framing of the charges. Letter dated 27th December, 2007 was written by the Commandant to the Deputy Secretary Home (Police), U.P., Lucknow informing about the order dated 29th August, 2006 and filing of the contempt application by the respondent. It was also stated in the letter dated 27th December, 2006 that the Contempt Court on 21st December, 2006 during hearing, has directed that in case the order dated 21st March, 2006 is not complied with, the Officer shall appear personally. Appropriate guidance was asked for from the State Government. An order dated 16th January, 2007 was passed by the Commandant permitting the respondent to join his duties subject to condition that an affidavit will be filed by the respondent stating that he shall not claim salary from the date of dismissal till the date of his reinstatement and obtain a medical fitness certificate within 14 days. The contempt application was further taken up by the learned Contempt Judge on 17th January, 2007 and the learned Contempt Judge took the view that the condition imposed in the order dated 16th January, 2007 reinstating the respondent prima facie does not appear to be justified. It was observed in the order dated 17th January, 2007 that undertaking was submitted on 3rd May, 2006, hence the respondent was entitled to be reinstated and receive salary. In the contempt proceedings following two charges were framed on 24th September, 2010:

Charge No. 1: That you, Mr. Satyendra Kumar, Sena Nayak, 42, Battalion, P.A.C., Naini, Allahabad, show cause why you should not be tried and punished for wilful and deliberate violation of the judgment and order of this Court dated 21.3.2006 passed in Civil Misc. Writ Petition No. 40165 of 1999.

Charge No. 2: That you are further charged for committing wilful breach of an undertaking given in the present contempt proceedings on 6.9.2010.

The order dated 24th September, 2010 provided that appellant should file on or before 15th October, 2010 reply to the charges with further clarification that any observation or finding recorded herein above are only, prima facie, in nature and are subject to the reply which may be filed in response to the charges framed. The matter was taken up on 22nd October, 2010, which was fixed in the contempt. The counsel appearing for the appellant made a request for adjournment which, however, was not accepted and the contempt Court proceeded with the matter and convicted and sentenced the appellant by judgment and order dated 22nd October, 2010. This appeal has been filed against the said judgment and order.

Learned Counsel for the appellant, in support of the contempt appeal, has contended that the undertaking, which was submitted by the respondent, was not in accordance with the judgment and order dated 21st March, 2006. It is submitted that in the undertaking, which was submitted by the respondent, it was stated that respondent shall not claim any salary from the date of dismissal till 21st March, 2006, i.e. the date of judgment. The submission is that the judgment dated 21st March, 2006 did not provide that respondent shall be paid salary from the date of judgment, rather the statement made by the respondent was that if he is reinstated in service, he will not claim any arrears of salary for the period he has not worked. The respondent was directed to submit undertaking and further a direction was issued to pass an order within six weeks. Further protection was with regard to pay and treating the respondent in continuous service. It is submitted that respondent was directed to submit a revised undertaking due to which delay occasioned in issuing order of reinstatement. Sri Chaturvedi submits that, however, after the order of the contempt Court dated 21st December, 2006, an order reinstating the respondent was passed on 16th January, 2007 with the condition that he will submit an affidavit of not claiming salary from the date of dismissal till the date of reinstatement. Learned Counsel for the appellant further submits that after the contempt application was filed, letters were written to the State Government making reference to the order passed in the contempt proceedings. Reference has also been made to the letter dated 6th February, 2007 filed at Page 121 of the paper book in which Special Secretary was requested that necessary amount be allocated under the head of back wages so that the order of the Court be complied with. In the letter dated 6th February, 2007 earlier letters and reminders given, were referred to. Before framing of the charges on 24th September, 2010, letters was written by the Commandant to the State Government on 20th September, 2001. In the said letter dated 20th September, 2010 it was mentioned that for the period 17th June, 2006 to 28th January, 2007 the amount of Rs. 71,767/- shall be required to be paid. It is relevant to note that respondent in pursuance of the order dated 16th January, 2007, submitted his joining on 29th January, 2007 along with the letter dated 29th January, 2007 which has been filed at Page 171 of the paper book. It is further stated that in paragraph 4 of the letter dated 29th January, 2007 it was stated that respondent shall not claim any arrears of salary from the date of dismissal till the date of reinstatement. The submission on behalf of the appellant further is that the appellant had been writing to the authorities for payment of the arrears for the period 17th June, 2006 to 28th January, 2007, which amount having not been released, the payment could not be made within time. It is submitted that there is no wilful disobedience on behalf of the appellant of the orders passed by this Court and the delay which had occasioned in issuing the order of reinstatement and payment was due to the facts as noted above. It has lastly been stated by the counsel for the appellant that even on 22nd October, 2010 a cheque of the amount due to the respondent, was given by the appellant out of his own account, but the same was not accepted. It is further submitted that the State Government by order dated 25th October, 2010 has allocated the fund and approved the payment to the respondent. It is also submitted that the aforesaid facts clearly indicate that there was no wilful disobedience on the part of the appellant and the appellant as not liable to be convicted or sentenced for committing contempt of the judgment and order dated 21st March, 2006.

Sri B.N. Rai, learned Counsel for the respondent, submits that payments, which were due to the respondent in pursuance of the judgment and order dated 21st March, 2006, have already been made. Sri Rai has not seriously opposed the appeal.

We have considered the submissions of learned Counsel for the parties and perused the record.

The learned contempt Judge having convicted the appellant for contempt of the Court, the appeal is to be examined on merits and accordingly decided. We are of the view that mere fact that entire payment has been made in pursuance of the judgment and order dated 21st March, 2006 and the respondent does not seriously oppose the appeal, cannot be a ground for not entering into the merits or deciding the appeal on merits.

From the facts, as noticed above, it is clear that the judgment of learned Single Judge allowing the writ petition on 21st March, 2006, contemplated submission of undertaking before the authority concerned praying that respondent shall not claim any arrear of salary for the period he has not worked. The judgment dated 21st March, 2010 does not indicate that the Court intended that respondent be paid salary from the date of judgment. The Court specifically provided for passing an order within six weeks from the date of filing a certified copy of the judgment along with undertaking. The undertaking, which was submitted by the respondent (Page 78 of the paper book) was an undertaking that respondent shall not claim salary from the date of dismissal till 21st March, 2006. The undertaking, which was given by the respondent, cannot be treated to be strictly in accordance with the judgment of learned Single Judge dated 21st March, 2006. The undertaking ought to have been to the effect that respondent shall not claim salary from the date of dismissal till his reinstatement in service. The said act of not furnishing of appropriate undertaking may be a reason for not immediately passing an order of reinstatement. It has been pleaded by the appellant and was also stated in the contempt proceedings that the respondent was directed to submit a revised undertaking, which was submitted subsequent to the order of reinstatement dated 16th January, 2007. The appellant had passed an order on 16th January, 2007 directing for reinstatement, which order has been filed at Page 108 of the paper book. The reinstatement of the respondent substantially complied the judgment of the learned Single Judge.

Only issue, which is to be considered, is as to what was the reason for not passing an order within six weeks from the date of undertaking i.e. 3rd May, 2006. According to the judgment of learned Single Judge, the appellant had time to take a decision till 18th June, 2006 since six weeks time was allowed to take a decision. In any view of the matter, the only basis, which was pressed in the contempt proceedings, was that the arrears of salary to which the respondent was entitled from 3rd May, 2007 to 28th January, 2007 was not paid, hence contempt was committed. Learned contempt Judge has held that due to non payment of salary from 3rd May, 2007 to 28th January, 2007 wilful contempt has been committed. On 6th September, 2010, the learned contempt Judge has passed following order:

Today a supplementary rejoinder affidavit has been filed on behalf of the applicant which is taken on record.

Pursuant to the order dated 18.8.2010 the opposite party is present in the court and has assured to this Court that the arrear of salary between 3.5.2006 to January, 2007 shall be paid positively within a period of two weeks from today.

Let the matter be listed on 24.9.2010.

In case, the aforesaid amount is not paid on or before the date fixed, the Court would have no option but to frame charges against the opposite party.

However, it is made clear that if the order passed today is complied with, in that event, the opposite party need not to appear on the date fixed.

The learned contempt Judge has held the appellant guilty of wilfully violating the undertaking dated 6th September, 2010. As noticed above, the letters were written by the Commandant to the State Government seeking appropriate directions so that orders of the Court be complied and requesting the State Government to release necessary amount for payment of arrears. The sanction by the Government, as noticed above, has been received only by letter dated 25th October, 2010.

The question, to be considered, is as to whether there was wilful disobedience on the part of the appellant in not making payment of arrears of salary or violating the undertaking given before the contempt Court on 6th September, 2010.

It is not disputed that after reinstatement of respondent he is getting the regular salary and only issue was payment of arrears to which respondent claims to be entitled from 3rd May, 2006 to 28th January, 2007. After giving undertaking on 6th September, 2010 before the contempt Court, the Commandant wrote letter dated 13th September, 2010 to the Finance Controller of Allahabad praying that necessary amount be released. The letter dated 14th September, 2010 was written by the Finance Controller, which has been brought on the record at page 191, communicating the appellant that necessary action be taken for payment to the respondent after approval of the Government or approval of the Head of the Department and after the grant the amount shall be paid. Thus it is clear from the materials brought on the record of this appeal that necessary steps for payment of arrears was taken by the appellant by writing letter dated 13th September, 2010 to the Finance Controller which, however, was not released immediately and could be released only on 25th October, 2010. It is also to be noted that after framing of the charges on 24th September, 2010, the first date fixed in the contempt application was 22nd October, 2010. On 22nd October, 2010 no reply was filed by the appellant, however, request was made by the counsel for the appellant for adjournment. It has been stated at Bar before us by learned Counsel for the parties that on that date request was made for adjournment of 24 hours to enable the appellant to file affidavit, which was not granted. Although it was true that the appellant was required to file an affidavit/reply on the date fixed, which he could not do and the contempt Court proceeded to convict him without there being any reply on behalf of the appellant.

All the relevant materials, which have been brought in this appeal, could not be brought before the contempt Court. The materials, which have been brought in this appeal, have been perused by us. We are of the view that there was no wilful disobedience on the part of the appellant for non payment of arrears from 3rd May, 2006 to 28th January, 2007. As observed above, the undertaking, which was given by the respondent on 3rd May, 2006, was also not strictly in accordance with the judgment of the learned Single Judge dated 21st March, 2006, however, the special appeal against the judgment and order dated 21st March, 2006 having been dismissed by the Division Bench, we need not make any observation with regard to merits of the judgment in the writ petition.

It has also been stated on behalf of the appellant that, in fact, on 22nd October, 2010 a cheque for the amount to which the respondent was entitled as arrears of salary, has been prepared by the appellant from his own account since the Government has not, by that time, sanctioned the amount. We need not enter into the said issue since payment of arrears of salary has already been made to the respondent, which has been accepted by counsel for the respondent.

Taking into consideration the materials brought on the record and explanation, which has been submitted by the appellant to prove that there was no wilful disobedience on his part in non compliance of the judgment and order dated 21st March, 2010, we are of the considered opinion that the appellant do not deserve conviction and sentence in facts of the present case.

In result, the appeal is allowed. Order dated 22nd October, 2010 is set-aside.

Parties shall bear their own costs.