Patna High Court - Orders
Sanjay Kumar Das vs The Union Of India & Ors on 22 September, 2011
Author: V. N. Sinha
Bench: V. N. Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Jurisdiction Case No.852 of 2011
Sanjay Kumar Das
Versus
The Union of India & Ors
For the petitioner : M/s Devendra Kr. Sinha, Sr. Adv., Dilip
Kumar, Advocate.
For the Union : M/s Raghib Ahsan, ASG, S.M. Iqbal Hasan
Rahmani, CGC.
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09. 22.09.2011Heard learned counsel for the petitioner and the Union of India.
2. This contempt petition has been filed alleging non-compliance of the order of the High Court dated 9.9.2010 passed in C.W.J.C. No.12205 of 2010, Annexure-1 whereunder this Court directed the authorities of the Union to consider the case of the petitioner for withdrawal of his resignation in the light of the order passed in the case of Dr. Bahl, operative paragraphs-5 and 6 of the order dated 9.9.2010 is quoted hereinbelow for ready reference :-
"5. Having heard counsel for the petitioner and the Union as also having considered the provisions of Sections-3, 8 of the BSF Act, 1968, BSF Rules, 1969 i.e. Rule 19 and 30, I am of the view that while accepting the resignation of Dr. Bahl the contempt authority passed order dated 13.9.2002, in the light whereof order was communicated to all concerned under letter dated 19.09.2002 with immediate effect i.e. date of release under Section-8, 3 of the BSF Act and Rule-19, 2 30(a) of the Rules without pensionary benefits. It was further stated in paragraph-2 of the order that the officer will thus stand struck off strength of BSF with immediate effect in accordance with Rule-30(a). The officer be relieved accordingly, and charge report be sent to all concerned in compliance of the order dated 13/19.9.2002. Dr. Bahl appeared before the commandant on 8.10.2002 for handing over charge but before her charge relinquishment report was countersigned by the Commandant she disappeared from the office of the commandant to again appear on 5.8.2003 when her charge relinquishment report was accepted. The order dated 13/19.09.2002 of the competent authorities of the Central Government was to accept the resignation of Dr. Bahl with immediate effect with further direction to strike off the officer from the strength of the BSF with immediate effect and to send the charge report, therefore, in my opinion in compliance of the orders of the Central Government resignation of Dr. Bahl was required to be accepted when she had appeared in the office of the Commandant on 8.10.2002 and disappeared within 10 minutes. Had her charge relinquishment report been accepted on 8.10.2002 there was no occasion for the authorities to have allowed withdrawal of her resignation application filed on 9.10.2003.
6. Aforesaid aspect of the matter does not appear to have been considered by the competent authority of the Central Government while considering the representation of the petitioner in compliance of my order. As the competent authority has not considered aspect which is relevant in the matter and has passed the impugned order, the same 3 suffers from the vice of having not considered aspect which is relevant to be considered in the matter. In appreciation of the aforesaid aspect of the matter, I set aside the impugned order dated 8.6.2010, Annexure-31 and remit back the matter to the competent authority of the Central Government to take a fresh view in the matter and pass appropriate order albeit in accordance with law as early as possible, in any case within three months from the date of receipt/production of a copy of this order."
3. In compliance of the aforesaid order dated 9.9.2010 the authorities of the Union passed order dated 14.12.2010, Annexure-4 rejecting the request of the petitioner for withdrawal of his resignation as the same was submitted beyond the period of 90 days. In paragraph 12 it was stated that Dr. Bahal had submitted application for withdrawal of her resignation within 90 days and petitioner having submitted his application for withdrawal of resignation beyond 90 days, his case is different from that of Dr. Bahl.
4. Before filing the present contempt petition on 22.02.2011 order dated 14.12.2010 was challenged by the petitioner by filing C.W.J.C. No.1552 of 2011, which was placed for consideration 4 on 27.01.2011 before another Bench of this Court. C.W.J.C. No.1552 of 2011 was permitted to be withdrawn after some argument with liberty to the petitioner to pursue the matter in contempt proceedings. In the light of the liberty granted in C.W.J.C. No.1552 of 2011 the present contempt petition has been filed stating inter alia that this Court under order dated 9.9.2010 directed the authorities of the Union to consider the request of the petitioner for withdrawal of his resignation in the light of the case of Dr. Bahl discussed in paragraph-5 of the order dated 9.9.2010, whereunder this Court noted the fact that under order/communication dated 13/19.09.2002 competent authority accepted the resignation of Dr. Bahl with immediate effect with direction to the authorities of the force to strike off Dr. Bahl from the strength of the force with immediate effect and charge relinquishment report be sent to all concerned. In compliance of the order/communication dated 13/19.9.2002 Dr. Bahl appeared before the Commandant on 08.10.2002 for handing over charge but before her charge relinquishment report was 5 countersigned by the Commandant she disappeared from the office of the commandant to again appear on 5.8.2003 when her charge relinquishment report was accepted contrary to the direction of the Ministry of Home Affairs, Govt. of India contained in order/communication dated 13/19.09.2002 to accept the resignation of Dr. Bahl with immediate effect with further direction to strike her off from the strength of the force with immediate effect and to send the charge report.
5. It is submitted on behalf of the petitioner that aforesaid aspect of the matter has not been considered under order dated 14.12.2010 passed in purported compliance of the order of the High Court dated 9.9.2010. It is further submitted that when aforesaid aspect of the matter was brought to the notice of the Single Judge during the hearing of C.W.J.C. No.1552 of 2011 on 27.01.2011 the Hon'ble Judge permitted withdrawal of the writ case granting liberty to the petitioner to pursue the matter in contempt proceedings. When aforesaid aspect of the matter was highlighted before this Court today, 6 learned counsel for the Union brought to my notice paragraph-7 of the order and submitted that in view of the observations made thereunder there is full compliance of the earlier order of the High Court dated 9.9.2010 and there is hardly any occasion for this Court to issue notice of contempt in the matter. For ready reference paragraph-7 of order dated 14.12.2010 is quoted hereinbelow :-
"Whereas, at that time, she was overstaying from leave w.e.f. 04.8.2002 and reported back to her unit i.e. 133 Bn BSF on 8.10.2002 and again absented without leave within 10 minutes and without even waiting for countersignature of the Comdt 133 Bn BSF on her „charge relinquishment report‟. The „charge relinquishment report‟ so submitted by the said LMO was not countersignned by the Commandant 133 Bn BSF owing to following reasons and hence she was marked as absent without leave :-
i) Large amount on account of Pay & Allowances of her AWL period was required to be deposited by the said LMO.
ii) Presence of the said LMO was required by 128 Bn BSF for deposing her statement in a Magisterial inquiry regarding custodial death of one W. Borojendro Singh."
6. From perusal of paragraph-7 of order dated 14.12.2010, in my opinion, there is hardly any consideration of the aspects which has been dealt by 7 me in paragraph-5 of order dated 9.9.2010 that competent authority under order/communication dated 13/19.09.2002 accepted the resignation of Dr. Bahl with immediate effect with direction to the authorities of the force to strike off Dr. Bahl from the strength of the force with immediate effect and charge relinquishment report be sent to all concerned. In compliance of the order/communication dated 13/19.09.2002 Dr. Bahl appeared before the Commandant on 8.10.2002 for handing over charge but before her charge relinquishment report was countersigned by the Commandant she disappeared to again appear on 5.8.2003 when her charge relinquishment report was accepted contrary to the direction of the Ministry contained in order/communication dated 13/19.09.2002. In this connection, learned counsel for the petitioner also submitted that paragraph-7 is the carbon copy of paragraph-9 of the earlier order dated 8.6.2010, Annexure-3 passed by the authorities of the Ministry in compliance of the earlier order of the High Court dated 8.3.2010, which has already been set aside 8 under order dated 9.9.2010.
7. In view of my observations above, I have no option but to issue notice of contempt to the Union and its functionaries to show cause as to why they be not proceeded for contempt of the order of the High Court dated 9.9.2010, Annexure-1. Notice on behalf of the Union is accepted by Sri S.M. Iqbal Hasan Rahmani learned counsel appearing on behalf of the Union in this matter on whom a copy of this petition be served by the petitioner. Opposite party nos.2 to 10 be served notice through fax at the cost of the petitioner.
8. Put up for further consideration after service is effected.
( V. N. Sinha, J.) Rajesh/