Jharkhand High Court
State Of Jharkhand And Ors. vs Md. Muzammil Sultan on 30 June, 2003
Equivalent citations: [2004(2)JCR446(JHR)]
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
JUDGMENT
1. This appeal has been filed by the State of Jharkhand and others, against the order dated 15.7.2002, passed by learned Single Judge, in Contempt Case (Civil) No. 745 of 2001. According to stamp report dated 28.1.2003, limitation for filing the appeal expired on 14.8.2002, whereas it was filed on 28.1.2003, I.A. No. 206 of 2003 at flag 'L' has, therefore, been filed, under Section 5 of the Limitation Act, 1963, for condonation of the aforesaid delay, wherein the detailed explanation has been furnished. We are satisfied that the appellants have property explained the aforesaid delay caused in filing the appeal. Hence, the delay is condoned.
2. Md. Muzammil Sultan, the sole respondent was working on the post of typist, on daily wage in the office of the Conservator of Forest, State Trading Circle, Hazaribagh (West). According to him, a list of the candidates, including him, who were working on daily wage for the last so many years was prepared, pursuant to the Government notification dated 18.6.1993 and was sent to the higher authority for consideration of their case for regularization, but nothing happened thereafter. He, therefore, filed CWJC No. 1154 of 2000 in this Court for issuance of appropriate direction upon the respondents concerned to consider his case for regularization. The said writ application was disposed of on 19.6.2001 with direction to the respondents to consider his case also along with others for regularization of their services and pass a reasoned order within two months from the receipt/production of the order. The sole respondent, thereafter received Memo No. 849 dated 18.8.2001, issued from the office of the Divisional Forest Officer, State Trading Division, Hazaribagh (West) whereby his representation was disposed of, holding that neither there was any vacant post of class-III and class-IV employees, nor there was any work, and as such it was not possible to regularize his services against any of the posts. However, as the respondent was found to have been working, he was paid arrears of wages up to August, 2001. Thereafter, Divisional Forest Officer the appellant No. 4 issued letter dated 27.8.2001 for disengagement of the sole respondent with effect from 31.8.2001.
3. The sole respondent filed Contempt Case (Civil) No. 745 of 2001, alleging non-compliance of the order dated 19.6.2001 passed in CWJC No. 1154 of 2000. The appellants filed show cause in the Contempt Case stating that the directions given by this Court by order dated 19.6.2001 to consider the case of the respondent along with other persons for regularization of their services and to pass a reasoned order and also to pay the salary due to him from April, 2001 onward, if he was found to have been working, were duly carried out and a reasoned order was passed on 18.8.2001 and the respondent was also paid his salary due.
4. The learned Single Judge heard the contempt case and disposed it of by the impugned order dated 15.7.2002 observing that the Regional Chief Conservator of Forest, who was present in Court stated that the petitioner has been working on the post of typist and he shall be regularize in service in compliance of the Court's order and directed the opposite parties therein to pay the entire salary, including the period when pursuant to illegal order of termination the petitioner was not paid his salary. It was further observed that no reason has been assigned as to why inspite of specific direction of this Court, the letter terminating the services of the respondent was issued by the Division Forest Officer, State Trading Division, Hazaribagh (West). Learned Single Judge directed the opposite party- appellant herein to pay the entire salary, including the period when, pursuant to the illegal order of termination the respondent was not paid his salary. The entire salary was, therefore, directed to be paid to the sole respondent within 30 days.
5. CWJC No. 1154 of 2000 was disposed of on 19.6.2000 with the following observations :
"Be that as it may, the undisputed fact is that petitioner has been working on daily wage for the last 17 years and he is still working. This is high time the respondents should consider the case of the petitioner and other similarly situated persons and take decision in the matter of regularization of their services taking into consideration the Government decision to consider the case of the daily wages employees for regularization who have been working much before 1.8.1985.
This writ application is, therefore, disposed of with a direction to the respondents to consider the case of this petitioner also along with other petitioners for regularization of their services and pass a reasoned order within two months from the date of receipt/ production of a copy of this order.
Mr. V. Shivnath, learned counsel for the petitioner submits that after filing of this writ application, the respondents have stopped paying salary to the petitioner since April, 2001. It goes without saying that if the petitioner has been working as such even after April, 2001 then there is no reason why he should not be paid salary as he was paid salary prior to April, 2001."
6. The learned Advocate General, appearing on behalf of the appellant submitted that the impugned order/decision of the learned Single Judge is not an order in exercise of the jurisdiction under the Contempt of Court's Act and it goes far beyond the relief granted in the writ-application itself. It was further submitted that the impugned order was beyond the jurisdiction of the learned Single Judge in a proceeding initiated as a civil contempt under the Contempt of Court's Act complaining of willful disobedience of a direction of the Court and consequently, the order becomes nonest and it is fit to be set aside. Mr. Advocate General also submitted that the appellant No. 4 passed a reasoned order pursuant to the direction of this Court and as such the impugned direction of the learned Single Judge was outside the scope of the contempt jurisdiction of the Court and the relief sought for could not be granted in contempt proceeding. Reliance was placed on the decision of the Apex Court in State of Jammu and Kashmir v. Sayeed Zaffar Mehdi, (1997) 9 SCC 640, wherein it was held that in a contempt case it was not open to the Court to enlarge the scope of the original petition and grant relief and it was necessary to impress upon the High Courts that contempt being a quasi-criminal matter, care should be taken, to see that the scope of the original writ-application is not enlarged while malting orders of contempt matters. Consequently, the impugned order dated 15.7.2002 is fit to beset aside.
7. On the other hand, Mr. V. Shivnath, counsel for the sole respondent submitted that the present LPA is not maintainable against the order impugned passed in a contempt case and in support of his contention placed reliance upon a decision in State of Bihar and Ors. v. Nityanand Datkullyar, 1997 BLJ 652. In the said case the learned Single Judge had disposed of the contempt proceeding without deciding the rights/liabilities of the parties and simply directed the opposite parties therein to implement the direction/order passed in the writ-application. Hence, such order was not a judgment within the meaning of Clause 10 of the Letters Patent and accordingly the appeal (LPA) is not maintainable.
8. We find that in CWJC No. 1154 of 2000 the respondent sought direction for regularization of his service and this Court had. disposed of the same with direction to consider his case for regularization along with other similarly situated person and accordingly on 18.8.2001 the appellant No. 4 passed orders in detail and ultimately on 27.8.2001 the respondent was removed from service. In our considered view, the remedy against the order was to file a fresh writ petition under Article 226 and 227 of the Constitution of India challenging the same. The contempt matter was taken up on 15.7.2002, whereas the direction given by this Court on 19.6.2001 was already complied with on 18.8.2001 itself and thereafter unless the orders dated 19.6.2001 and 27.8.2001 were set aside by the competent forum, there was no occasion for the learned Single Judge to repeat the said direction and compel the authority concerned to pass fresh orders regarding regularization in service and make payments of the wages for the period even after the sole respondent was removed from service and he had not worked. Such orders, if necessary could have been passed only in the writ petition filed against those orders. II appears that the Regional Chief Conservator of Forests was present in person on 15.7.2002 in Court and even after passing orders dated 18.8.2001 and 27.8.2001, he undertook to comply with the orders dated 19.6.2001 afresh and regularize the services of the sole respondent, obviously for the fear of being punished in the contempt case. So such undertaking cannot be given effect to.
9. The present appeal has not been filed by the alleged contemnor seeking to challenge either the punishment imposed on him or any direction issued to him, alleged by him to be out side the scope of the original writ application itself. In case, where punishment is imposed, the Contempt of Court's Act itself provides for an appeal under Section 19 thereof. Here, although the contemnors have not been punished, rather the learned Single Judge has issued peremptory directions going beyond the scope of the original writ-application or the relief granted therein. The direction so issued could be best be traced only to the plenary power available under Article 226 of the Constitution of India. Hence, in our view, the order impugned very well comes within the purview of Section 10 of the Letters Patent. We, therefore, overrule the preliminary objection raised by Mr. V. Shivnath in tills appeal.
10. In the present case, the learned Single Judge issued peremptory directions going far beyond the scope of the original writ-application and the relief granted therein. The sole respondent approached this Court with the application under the Contempt of Court's Act only on the plea that direction to consider his claim for regularization in service was not complied with whereas orders dated 18.8.2001 and 27.8.2001 were already passed pursuant to the Court's order/direction dated 19.6.2001 and as the said complain did not survive thereafter, it cannot be said that there was any contempt of Court committed. We are satisfied that there was no willful disobedience of this Court's direction and therefore there was no occasion for taking any action under the Contempt of Court's Act.
11. In the result, this appeal is allowed and the impugned order dated 15.7.2002 passed by the learned Single Judge in Contempt (Civil) No. 745 of 2001 is set aside.