Karnataka High Court
Sri H M Amjad Hussain vs Sri Mohammed Mohsin on 21 September, 2017
Author: Jayant Patel
Bench: Jayant Patel
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF SEPTEMBER, 2017
PRESENT
THE HON'BLE MR.JUSTICE JAYANT PATEL
AND
THE HON'BLE MR.JUSTICE B.A. PATIL
C.C.C. No.389 OF 2017 (CIVIL)
BETWEEN:
Sri. H.M. Amjad Hussain,
S/o H. Munzooru Hussain,
Aged about 53 years,
Estate Officer,
Dargah Hazaratj Ataur
Shah & Nabi Shan (Wakh)
(Bada Makan)
H. Siddaiah Road,
Bengaluru 560 027.
... Complainant
(By. Sri. Basavaraj V. Sabarad, Adv.)
AND:
1. Sri. Mohammed Mohsin,
Age: Major,
Administrator/Chairman,
The Karnataka State Board of Wakfs
No.6, Cunningham Road,
Bengaluru 560 052
2. Sri. Zulfakarulla
Age: Major,
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The Chief Executive Officer,
Karnataka State Board of Wakfs
No.6, Cunningham Road,
Bengaluru 560 052.
... Accused
(By Smt. S.R. Anuradha, Adv. for A1 & A2)
This CCC is filed under Sections 11 and 12 of the
Contempt of Courts Act, 1971 R/w Article 215 of the
Constitution of India, by the complainant, praying to
initiate action against the accused for contempt of Court
and punish them for not obeying the orders and directions
in W.P. No. 4273/2015 dated 11/03/2016.
This CCC coming on for Orders this day, Jayant
Patel, J., passed the following:-
ORDER
The basis of the present contempt proceedings is the non-compliance and disobedience of the order dated 11.03.2016 passed by this Court in Writ Petition No.4273/2015. We may record that the direction which is alleged as not complied with, reads at Paragraph 8 of the aforesaid order as under:
"8. Hence, to enable such consideration, the endorsement dated 07.11.2014 as also the earlier order dated 12.03.2008 are set aside. A direction is issued to the first and second -3- respondents to reconsider the case of the petitioner in the light of all the factual aspects that have been referred to herein and also keeping in view the absorption / regularization that had been made in the case of similarly placed employee and thereafter come to a conclusion in accordance with law. Such decision shall be taken by the first respondent as expeditiously as possible, but not later than eight weeks from the date on which a copy of this order is furnished."
2. This matter was heard in the earlier point of time on 30.08.2017 and this court had passed the following order:
"The basis of the present proceedings under the Contempt of Courts Act, is the alleged breach and non-compliance of the order dated 11.3.2016 passed by this Court in the connected writ petition.
We have heard Mr.Basavaraj V Sabarad, learned Counsel for the complainant and Smt.S.R.Anuradha, learned Counsel for accused Nos.1 and 2.
We may record that initially when the petition was entertained no order was passed by -4- the accused, it is only after the process is served upon them, they have appeared through the Advocate. The so called compliance is sought to be reported by relying upon the endorsement/report dated 7.8.2017 read with the endorsement dated 8.8.2017.
This Court in the order dated 11.3.2016 at paragraphs No.5, 6 and 7 had observed thus;
"5. Having taken note of all these aspects of the matter, a perusal of the endorsement dated 07.11.2014 impugned herein, at the outset would indicate that the same does not refer to all these aspects of the matter which was to be kept in view and thereafter a conclusion was to be reached. Even in the order dated 12.08.2013, except for rejecting the case of the petitioner by holding that the petitioner had been holding a post in the Wakf institution on a temporary basis, no other consideration had been made, more particularly when a similar consideration had been made in respect of another employee as per Annexure-N dated 10.10.2006.-5-
6. Therefore, if these aspects are kept in view, both the order dated 12.03.2008 and the endorsement dated 07.11.2014 will have to be considered as being made without application of mind and without taking into consideration all aspects of the matter relating to the claim as put forth by the petitioner.
7. That apart, having taken note of the fact that the first respondent had sufficient number of vacancies at an earlier point in time and even if the said recruitment process has been completed, a consideration of the case of the petitioner could be made in the circumstance as and when the vacancies arise."
Thereafter, the endorsement was set aside and direction was issued to the first and second respondents therein to reconsider the case keeping the factual aspects referred to in the order and also keeping in view the absorption/regularization that had been made in the case of similarly placed employee for which the reference was made in the above referred paragraph 5 as per order Annexure-N dated -6- 10.10.2006 which is stated to be in case of Mr.Munawar Pasha who was employee of Hazrath Tippu Sultan Wakf Estate, S.R.Patna.
On the basis of the above referred order of this Court in the so called compliance following words are used;
"It was observed that Endorsement No.KTW/13/ADM/98-99 dated 07.11.2014 already issued by earlier Chief Executive Officer to Shri H.M.Amjad Hussain saying that the question of regularization of his services does not arise since he is the employee of Dargah Hazrath Ataullah Shah and Nabi Shah, Siddaiah Road, Bengaluru."
In the very order it has been further observed as under:
"It seems he has concealed this fact from the Hon'ble High Court of Karnataka in the latest WP No.4273/2015 dated
11.03.2016."
In the very order it is also observed:
"In the light of examination of the facts and the documents placed by the Petitioner it is found that no substantial -7- grounds are made out to differ the stand taken by the earlier Chief Executive Officer vide Endorsement No.KTW/13/ADM/98- 99 dated 07.11.2014. Apart from that there is no material to show that Shri H.M.Amjad Hussain case is based on the ground of parity."
The aforesaid observations would prima- facie go to show not only sitting over the judgment of the High Court, but also lower down the authority of this Court inasmuch as, once the High Court has set aside the order having found that there was non-application of mind, it was not open to the accused to maintain the very order on the same ground. The second aspect is that if there was concealment, though may not be in reality, but even if it is, the accused cannot sit in appeal over the decision of the High Court by alleging concealment, resulting nullifying the order of the High Court and the third aspect is that once the parity was so expressly observed by the High Court, the said aspect could not be nullified by concluding that there is no ground of parity.
As such, once the parity was so concluded by the High Court with the another employee -8- whose case was regularized vide order dated 10.10.2016 Annexure-N in the above referred paragraph 5 of the order, it was not open to the authority to take a different view and thereby nullify the effect of the order of the High Court, It is a case in our view prima-facie it can be said that there is not only breach and non- compliance of the order of the High Court, but the language used in the order lower down the authority and dignity of the Court.
Hence, before we pass appropriate order for framing of the charge against the accused, considering the facts and circumstances, we find that one opportunity can be given to the accused to purge from the contempt by reporting compliance of the order within two weeks. If the accused would not report compliance of the order, appropriate order shall required to be passed.
Hence, put up the matter on 18.9.2017. On that day both the accused shall remain personally present to show cause as to why further appropriate order should not be passed unless the compliance is reported to this Court. -9-
The learned counsel for the accused shall communicate the order to the accused. Additionally the order shall also be served to the concerned accused through the concerned police station."
Thereafter, the matter was again considered on 18.09.2017, and the following order was passed:
"The learned Counsel for the accused under the instruction of both the accused who are stated to be present in the Court states that the order for regularization shall be passed as per the prima facie observation made by this Court in the earlier order.
But only such may be subject to other litigation pending before the appropriate authority or Court and the learned Counsel seeks time till 21.09.2017 to report to this Court about compliance.
Put up on 21.09.2017. Both the accused shall remain present on that day."
3. Today, the learned counsel for the accused has tendered a memo reporting compliance, and a copy of the
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order dated 20th September 2017 is also produced. She further stated that both the accused are present before the court. She declared on behalf of the accused that as the order of the learned Single Judge which is the basis of the present contempt proceeding was to take appropriate decision within a period of eight weeks from the date of order, the order for regularization can be made effective from 1st April 2016, in the event this court finds that there was delay on the part of the accused to comply with the order.
4. So far as conditions are concerned, she stated that Condition No.4 in the order dated 20.09.2017 can be substituted by appropriate declaration by the complainant that he is not involved in any criminal offence pertaining to moral turpitude or any other offence and then the police verification may not be required, since the complainant is already working. She further declared that the difference of the backwages for the period from 1st April 2016 to 20th September 2017 shall be paid to the complainant by the
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accused within a period of four weeks from today and the complainant shall be treated as on regular service with effect from 20th September 2017 and the rest of the conditions mentioned in the order, namely Condition No.3, 4 (as modified), 5, 6, 7, may be complied with by the complainant within a period of one month from the date of payment of difference of backwages as declared earlier, from 1st April 2016 to 20th September 2017. She submitted that the aforesaid compliance may be considered by the court and no further action may be taken and she further states on behalf of Accused Nos.1 and 2 that unconditional apology of the accused may be accepted.
5. Whereas Mr. Basavaraj V. Sabarad, learned counsel appearing for the complainant contended that certain conditions, and more particularly the clause, 'subject to all orders that are passed and to be passed in W.P.No.40975/2012 and W.A.No.5679/2017 as per the order of the Apex Court in Uma Devi's case', are not acceptable to the complainant. Even the effect of the order
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which ought to have been from 1999, but is sought to be given effect from 1.4.2016 which is also not acceptable to the complainant and therefore, so far as the said part of the order is concerned, he submits that the complainant may be given liberty to challenge the legality and validity of the said part of the order before the appropriate forum.
6. The learned counsel appearing for the accused submitted that in the event the complainant challenges the said order, all contentions of the accused should also remain open to be considered in accordance with law.
7. In view of the above, we find that the following situation has resulted:
(i) the order of this court which is the basis of the present proceedings under the Contempt of Courts Act is complied with, with effect from 1.4.2016 but of course subject to the conditions.
(ii) In the event the complainant is aggrieved by any part of the order, the complainant may resort to appropriate proceedings before the appropriate forum and
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at that stage, the rights and contentions of both the parties shall remain open to be considered in accordance with law.
(iii) So far as difference of backwages for the period from 1.4.2016 to 20.09.2017, such difference of backwages shall be paid to the complainant by the accused within four weeks, that is on or before 23.10.2017.
(iv) The order dated 20.09.2017 produced herewith is to take effect from 1.4.2016 with the declaration made for modification of Condition No.4 as well as the rest of the Condition Nos.3, 5, 6 and 7 as recorded hereinabove. But, the complainant is to be granted time for a period of one month after the payment of difference of the backwages for the period from 1.4.2016 to 20.09.2017.
(v) From 20.09.2017 onwards, he shall be treated as an employee as regularized as per the pay-scale, subject to compliance of the conditions with the modification as required herein. He shall be permitted to report for duty on 22.09.2017.
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(vi) Rest of the conditions shall operate in accordance with law.
In view of the aforesaid situation, as the attempt has been shown on the part of the accused to comply with the order, we find that the unconditional apology can be accepted. Hence, the present proceedings are not required to be continued further. Therefore, disposed of with the observation that in the event the legality and validity of any part of the order for regularization of service is challenged before appropriate forum, the contentions of the complainant as well as of the accused shall remain open to the considered in accordance with law.
(JAYANT PATEL) JUDGE (B.A. PATIL) JUDGE KS Note:
As per the orders passed by Hon'ble the Chief Justice on 7.10.2017 in the Note Sheet, Hon'ble Sri Justice
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B.S.Patil is nominated for signing the unsigned order dated 21.09.2017 passed by the Hon'ble Sri Justice Jayant Patel and Hon'ble Sri Justice B.A.Patil in CCC.No.389/2017 in the light of Rule 6(2) of the Karnataka High Court Rules, 1959, Chapter XVI and the decision of the Division Bench of this Court in the case of M/s.Gem Travels Vs.Syndicate Bank, reported in ILR 1995 KAR 3063.
Sd/-
JUDGE Sd/-
JUDGE