Allahabad High Court
Uma Shanker Singh And Another (In Capl ... vs Janardan Lal Mishra And Another on 20 May, 2022
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 2 Case :- SPECIAL APPEAL No. - 213 of 2022 Appellant :- Uma Shanker Singh And Another (In Capl 1979 Of 2005) Respondent :- Janardan Lal Mishra And Another Counsel for Appellant :- Manjive Shukla Counsel for Respondent :- Shivam Sharma Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Subhash Vidyarthi,J.
Heard Sri Manjive Shukla, learned counsel for appellants and Sri Shivam Sharma, learned counsel for respondent no.1-Janardan Lal Mishra.
Since respondent no.2 is a formal party, no notice is required to be issued to him.
This intra-court appeal filed under Chapter VIII Rule 5 of the Rules of the Court impeaches two orders dated 27.01.2006 and 20.12.2021 passed by learned Contempt Judge in Contempt Petition No.1979 of 2005.
Submission of learned counsel for the appellants is that learned Contempt Judge while passing the order dated 27.01.2006 has recorded a finding; rather its satisfaction that respondent no.1-Janardan Lal Mishra was entitled to be regularization in service against the post of Munshi Nikasi/Forester in compliance of the judgment passed by the writ court and to that extent the order dated 27.01.2006 clearly manifests that learned Contempt Judge has exceeded contempt jurisdiction. It has further been argued that facts of the present case would reveal that even the order dated 20.12.2021 is also not warranted under law.
On the other hand, Sri Shivam Sharma, learned counsel for respondent no.1 has submitted that the order dated 27.01.2006 passed by learned Contempt Judge is based on admission of the officer concerned who was present on the said date and as such the appellants cannot be permitted to challenge the same. He has further argued that a similar matter; rather connected matter was taken up to Hon'ble Supreme Court where the order akin to the order dated 27.01.2006 passed by learned Contempt Judge in the matter was not interfered with. In this view, the submission is that the special appeal, being not maintainable, is liable to be dismissed at its threshold.
We have considered the rival submissions made by learned counsel for parties and have also perused the records of the special appeal available before us.
Before adverting to the contentions made by learned counsel for parties, we may note certain facts which are necessary for appropriate adjudication of the issues involved in this special appeal.
Respondent no.1-Janardan Lal Mishra has been working as daily wager in the Department of Forest, State of U.P. He instituted Writ Petition No.2817 (S/S) of 2002 with a prayer to direct the State authorities to regularize his services against a Class-III post of Export Moharrir/Nikasi Munshi, which was finally disposed of by learned Single Judge of this Court by means of the judgment and order dated 10.01.2005 whereby two directions were issued to the State authorities. The first direction issued by learned Single Judge was that the State-respondents shall decide the issue of regularization of his services on the post on which he was working and second direction was that until such time his services are regularized, he shall be paid salary in regular pay scale.
Since the said order dated 10.01.2005 was not being complied with, respondent no.1 instituted Contempt Petition No.1979 of 2005. In the said Contempt Petition, an order was passed on 06.01.2006 whereby one of the official respondents arrayed in the said Contempt Petition was directed to appear in person on the next date. On 27.01.2006 the order which is under challenge in this special appeal was passed. The said order dated 27.01.2006 is extracted herein below:-
"Sri Uma Shanker Singh, Conservator of Forest, Awadh Circle, U.P. Lucknow, Opp. Party No.2 is present in Court.
After hearing both the parties, this Court is satisfied that the petitioner is entitled to get regularization against the present post of Munshi Nikasi/Forester in compliance to the judgment of this Court.
Sri Uma Shanker Singh, Opp. Party no.2 undertakes to comply the order of this Court within three weeks from today. He will seek necessary approval from the State Government.
List on 6th March, 2006.
In case approval is not granted by that time, Opp. Party no.1 shall also required to be present in this Court on the next date fixed.
Chief Judicial Magistrate, concerned, shall take all effective steps to secure personal appearance of Opp. Party no.1 on the next date fixed.
In case of compliance, Opp Party no.2 shall file his personal affidavit of compliance."
From a perusal of the aforesaid order, it is revealed that in the first paragraph learned Contempt Judge has recorded the presence of the Officer before the Court and thereafter the Court has recorded a finding, that too, after hearing both the parties, to the effect that the Court was satisfied that respondent no.1 was entitled to get his services regularized against the post of Munshi Nikasi/Forester in compliance of the judgment of the writ court. After the aforesaid findings recorded by learned Contempt Judge in paragraph 2 of the said order dated 27.01.2006, learned Contempt Judge further observes that the Officer present had given an undertaking to comply with the order of the Court within three weeks and further that he shall seek necessary approval from the State Government.
It is this order on which learned counsel for appellants is emphasing to submit that the findings recorded by learned Contempt Judge to the effect that respondent no.1 was entitled to be regularized was not based on any categorical statement/admission of the Officer who was present before the learned Contempt Judge on the said date.
After the order dated 27.01.2006 was passed, the same was challenged by the State authorities by filing Contempt Appeal, namely, Contempt Appeal No.21 of 2006 wherein an order was passed by a Division Bench of this Court on 28.02.2006 whereby the order dated 27.01.2006 passed by learned Contempt Judge was stayed.
Prior to filing of the said Contempt Appeal, an order was passed on 23.01.2006 by the Conservator of Forest, Awadh Region, U.P., Lucknow whereby the respondent no.1-Janardan Lal Mishra was made available the benefit of regular scale of pay for rest of four months as well for the reason that initially he was made available regular scale of pay only for eight months in a year for the alleged reason that his employment was against a seasonal post and not regular post.
The Contempt Petition No.1979 of 2005 instituted by respondent no.1, in the meantime, was dismissed for non-prosecution on 23.08.2012, however, the interim order granted by a Division Bench of this Court, dated 28.02.2006 in the Contempt Appeal continued. The Contempt Appeal got dismissed on 10.01.2017 on the ground that it is not maintainable against the order dated 27.01.2006 passed by learned Contempt Judge.
It has been argued by learned counsel for appellants that since the Contempt Petition No.1979 of 2005 was dismissed on 23.08.2012 itself, therefore, nothing further was done by the State authorities in the matter of regularizing the services of respondent no.1.
We may also notice that the Contempt Petition was, however, restored vide order dated 22.10.2021 on the recall application moved by respondent no.1 after lapse of a period of about 9 years from the date it was dismissed in default i.e. since 23.08.2012. It has been stated by learned counsel for appellants that since by the time recall application came up before the Court for hearing, appellant no.1 had already retired and as such notice of the recall application could not be served on him. After restoration of the Contempt Petition No.1979 of 2005, an order was passed on 13.12.2021 by the Chief Conservator of Forest, Lucknow Division, U.P. Lucknow whereby services of respondent no.1 were regularized with immediate effect. It is only once the said order was taken note of by learned Contempt Judge on 20.12.2021 that the Chief Conservator of Forest, Lucknow Division, U.P. Lucknow issued a corrigendum on 30.12.2021 regularizing the services of the respondent no.1 with effect from 01.07.2011.
In the aforesaid facts, submission of learned counsel for appellants is that in absence of any determination of entitlement of respondent no.1 for regularizing his services by the writ court by means of the judgment and order dated 10.01.2005, the findings recorded by learned Contempt Judge in the impugned order dated 27.01.2006 are uncalled for and in excess of contempt jurisdiction and hence, the said order is liable to be set-aside.
Opposing the prayers made in this special appeal, as observed above, Sri Shivam Sharma, learned counsel for respondent no.1 has stated that in similar circumstances, a similarly worded order was passed by learned Contempt Judge on 27.01.2006 in the case of other similarly situated employees, namely, Hriday Ram Yadav and others. The State authorities took up that matter in Contempt Appeal which was dismissed by a Division Bench of this Court by means of the judgment and order dated 18.04.2006 passed in Contempt Appeal No.20 of 2006. The order dated 19.04.2018 passed by Hon'ble Supreme Court in Civil Appeal No.4074 of 2009 has also been brought to our notice whereby Hon'ble Supreme Court dismissed the appeal preferred by the State against the orders dated 27.01.2006 and 18.04.2006 passed in Contempt Petition initiated by Hridya Ram Yadav and others and in Contempt Appeal No.20 of 2006.
On the strength of aforesaid orders passed by a Division Bench of this Court and the Hon'ble Supreme Court on 18.04.2006 and 19.04.2018, respectively, it has been stated by learned counsel for respondent no.1 that the matter stood concluded and now at this stage nothing can be argued by the State authorities to assail the similarly worded order dated 27.01.2006 passed in the Contempt Petition initiated by the respondent no.1.
In the aforesaid background, what we notice is that the writ court by means of the order dated 10.01.2005 had issued two directions as observed above. The direction relating to consideration of claim of respondent no.1 for regularizing his services does not qualify as to from which date he was entitled to be regularized. The said direction also does not precede by any finding of the writ court as to the entitlement of respondent no.1 for regularization. The judgment only directed the department to decide the question of regularization of respondent no.1 on the post he was said to be working. Once any direction is issued by the writ court to decide the question of regularization, that would not mean that the writ court had adjudicated the entitlement for regularization as well; rather it would simply mean that question of entitlement of the employee for being regularized in service is also left open to the authorities concerned to consider the same. If the order dated 27.01.2006 is viewed in the said perspective, what we find is that learned Contempt Judge has manifestly departed from the directions issued by the writ court and has given a positive finding regarding entitlement of respondent no.1 for being regularized.
Submission of learned counsel for respondent no.1 that the said finding is based on admission regarding entitlement of respondent no.1 to be regularized in services does not appear to be correct.
When we peruse the order dated 27.01.2006 minutely, what we find is that though the said finding has been recorded in presence of the officer concerned present before the learned Contempt Judge, however, the order does not record any categorical statement or admission of the officer present before the Court and as such the said finding cannot be said to be based on any unqualified admission or statement of the Officer. It is trite in law that in contempt jurisdiction the only issue which needs to be seen and adjudicated upon is as to whether the order passed by the Court has been complied with or there has been any defiance or disobedience. In our considered opinion and as is well settled, it is not open to the Court while exercising its jurisdiction under Contempt of Courts Act to exceed or depart from the mandate or direction given by the writ court. Thus, we are of the opinion that the order dated 27.01.2006 passed by learned Contempt Judge exceeds the jurisdiction and limitation of exercising the contempt jurisdiction.
So far as the submission made by learned counsel for respondent no.1 that the matter was taken up before Hon'ble Supreme Court in the case of similar circumstanced employees, namely, Hriday Ram Yadav and others is concerned, we may only observe that even Hriday Ram Yadav has been regularized w.e.f the year 2011 and not w.e.f. the year 2006 when the order dated 27.01.2006 was passed in the said case also.
In the aforesaid view of the matter, we are satisfied that this special appeal deserves to be allowed.
Accordingly, the special appeal is allowed and the orders dated 27.01.2006 and the order dated 20.12.2021 passed in Contempt Petition No. 1979 of 2005 are hereby set-aside.
Before parting with the case, we may make it clear that so far as the payment of regular scale of pay is concerned, in terms of the judgment and order dated 10.01.2005 passed by the writ court the respondent no.1 is entitled to be paid regular scale of pay with effect from the date of his entitlement in terms of the said order.
However, we may make it clear that notwithstanding the decision rendered by us in this special appeal, it will always be open to the respondent no.1 to take appropriate recourse to any other remedy which may be available to him under law either by instituting writ petition or by taking any other appropriate legal recourse to get his regularization in service dated back.
There will be no order as to costs.
Order Date :- 20.5.2022 Renu/-