Jharkhand High Court
State Of Jharkhand And Anr. vs Krishna Nand Mishra Shashtri And Ors. on 19 April, 2006
Equivalent citations: [2006(3)JCR257(JHR)], 2006 (2) AIR JHAR R 724, (2006) 3 JLJR 50 (2006) 3 JCR 257 (JHA), (2006) 3 JCR 257 (JHA)
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya, Narendra Nath Tiwari
ORDER S.J. Mukhopadhaya, J.
Page 1383
1. This appeal under Clause 10 of the Letters Patent has been preferred by the State of Jharkhand and another against the order dated 24th February, 2004, passed by the learned Single Judge in Contempt (Civil) Case No. 204 of 2003. By the aforesaid order the learned Single Judge while disposing of the Contempt Petition, directed the District Education Officer, Gumla, to make payment to the respondent/writ petitioner with further observation that if the payment is not made within one month, punishment shall be awarded to him. The appellant is aggrieved by the said direction of payment in the last part of the impugned order.
2. Learned Counsel appearing on behalf of the respondent/writ petitioner questioned the maintainability of this appeal under Clause 10 of the Letters Patent. It was submitted that no appeal under Clause 10 of the Letters Patent is maintainable against the order, passed in a Contempt proceeding. He placed reliance on the decisions, reported in 1997(1) P.L.J.R. 121, 2004(1) J.L.J.R. 389 and 2004(3) J.L.J.R. 141 (SC).
In the case of State of Bihar v. Nityanand Dutkullyar reported in 1997(1) P.L.J.R. 121, Ranchi Bench of Patna High Court held that against an order, passed by the Single Judge, providing yet another opportunity for compliance of the Court's order, without passing any order of punishment for contempt, an appeal under Clause 10 of the Letters Patent is not maintainable.
In the case of Bashisth Narayan v. Sri A.K. Upadhyaya reported in 2004(1) J.L.J.R. 389, a Division Bench of this Court, having observed that the Single Judge dropped the Contempt proceeding, held that in such circumstances, the appellant can not be considered to be an aggrieved person, so as to justify the filing of an appeal. The said appeal was not preferred under Clause 10 of the Letters Patent but was a Contempt Appeal, preferred under Section 19(1) of the Contempt of Courts Act and, as such, the same is not applicable in the present case.
In the case of Dr. Prodip Kumar Biswas v. Subrata Das reported in 2004 (3) J.L.J.R. 141 (SC), the Supreme Court held that the purpose of contempt jurisdiction is to uphold the majesty and dignity of the court of law and the contempt proceeding should not be initiated lightly. That was a proceeding under Section 19 of the Contempt of Court Act.
3. Learned Counsel for the appellant/State, on the other hand, relied on the decisions, reported in A.I.R. 1997 SC 103, 2003(4) J.L.J.R. 439 and , which are discussed hereunder:
In the case of J.S. Parihar v. Ganpat Duggar reported in A.I.R. 1997 SC 103, the Supreme Court having noticed that the Single Judge of High Court held that there was no willful disobedience of the order, observed that no order of punishment for violating the order of the Court having been passed, the appeal under Section 19 before the Division Bench was not maintainable. In the said case it was noticed that a seniority list was prepared by the Government on the basis of the direction, issued by the Court, which was not in conformity with the Court's directions, it was observed that though a party can avail the opportunity of judicial review, it cannot be considered to be willful violation of the order, but certain directions, having been given by the Single Judge with Page 1384 regard to the seniority list, the Supreme Court held that such order being a judgment, it was open to the Division Bench to correct the mistake, if any, committed by the Single Judge.
Similar question fell for consideration before the Division Bench of this Court in the case of State of Jharkhand v. Md. Muzammil Sultan reported in 2003(4) J.L.J.R. 639. In that case the respondent was removed from service inspite of the direction, given by the writ court for consideration of his case for regularization along with other similarly situated persons. The learned Single Judge while dealing with a contempt proceeding, repeated the direction and compelled the authority to pass fresh orders regarding regularization of service and payment of wages. Against the said order, the State Government preferred an appeal under Clause 10 of the Letters Patent and similar objection was raised that the appeal under Clause 10 of the Letters Patent was not maintainable. Division Bench of this Court held that the direction, so issued in contempt proceeding, could at best be traced to the plenary power available under Article 226 of the Constitution of India and an appeal under Clause 10 of the Letters Patent was maintainable.
4. So far as the present case is concerned, the respondent/writ petitioner filed a writ petition bearing W.P.(S) No. 5796 of 2001 for a direction on the State authorities to grant approval of his service as a Teacher of Government Aided Private School, run by the Managing Committee. The learned Single Judge disposed of the writ petition on 27th November, 2002 and accepted that there was a dispute with regard to the actual qualification of the respondent/writ petition and directed the Secretary, School Service Board, to dispose of the letter, sent by the school for its approval within a specified period. Thereafter, no order having been passed by the Secretary, School Service Board, Jharkhand, a contempt petition being Contempt Case (Civil) No. 204 of 2003 was preferred by the respondent/writ petitioner. In that case an affidavit was filed by the District Education Officer, Gumla, stating that the matter of salary was pending with the Director, Secondary Education, Jharkhand. Initially the learned Single Judge allowed time to the Secretary, School Service Board, Jharkhand, and the Director, Secondary Education, Jharkhand, but later on, directed those officers to appear in person to explain as to why the Court's order has not been complied with. In pursuance of the said order, the Director, Secondary Education, Jharkhand, appeared and informed that the order of the Court has been complied with and the letter, forwarded by the Managing Committee of the School, has been disposed of. Inspite of the same, the learned Single Judge by order dated 6th February, 2004 while accepting the show cause reply, dispensed with the appearance of the Director, Secondary Education, Jharkhand, by the impugned order dated 24th February, 2004 and directed the District Education Officer, Gumla, to make payment to the petitioner with further order that if no payment is made within one month, order of punishment shall be passed against him. Thus, without awarding any punishment, the contempt petition was disposed of with the aforesaid observations.
5. Similar issue fell for consideration before the Supreme Court in the case of Director of Education, Uttaranchal v. Ved Prakash Joshi . In the said case, the following observations were made:
7. While dealing with an application for contempt, the Court is really concerned with the question whether the earlier decision which has received its finality had been complied with or not. It would not be permissible for a Court to examine the correctness of the earlier decision which had not been Page 1385 assailed and to take the view different than what was taken in the earlier decision.
xx xx xx xx Flouting an order of the Court would render the party liable for contempt. While dealing with an application for contempt the Court cannot traverse beyond the order, non-compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional directions or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible. In that view of the matter, the order of the High Court is set aside.
6. In the instant case, learned Single Judge while disposing of the writ petition bearing W.P.(S) No. 5796 of 2001, had neither given any finding nor given any direction as to whether the respondent/writ petitioner was entitled for salary or who should pay the salary. The Secretary, School Service Board, Jharkhand was simply directed to dispose of the letter, sent by the School for approval of the services of the respondent/writ petitioner. Such being the position, the show cause filed by the Director, Secondary Education, Jharkhand, having been accepted and his appearance having been dispensed with in the said contempt proceeding, the learned Single Judge had no jurisdiction to change the original direction given in the writ petition, by directing the District Education Officer, Gumla, to make payment.
7. The aforesaid direction, so issued, could, at best, be traced only to the plenary power available under Article 226 of the Constitution of India; we hold that the appeal under Clause 10 of the Letters Patent is maintainable against such order, as held by the Division Bench of this Court in the case of State of Jharkhand v. Md. Muzammil sultan (supra).
8. However, the part of the impugned order, whereby, the District Education Officer, Gumla, has been directed to make payment in the said contempt proceeding being against the ratio, laid down by the Supreme Court in the case of Director of Education, Uttaranchal v. Ved Prakash Joshi (supra), is unsustainable and cannot be upheld and is, accordingly, set aside. The appeal is, thus, allowed, but without any order as to costs.