Vipin Kumar Mishra vs Mukesh Kumar Singh Dist. Inspector Of ... on 25 April, 2023

[Cites 13, Cited by 0]

Allahabad High Court

Vipin Kumar Mishra vs Mukesh Kumar Singh Dist. Inspector Of ... on 25 April, 2023

2. The instant contempt application has been filed alleging non-compliance of the order dated 4.12.2018 passed in Writ Petition No. 28705 (SS) of 2017 in re: Vipin Kumar Mishra Vs. State of U.P. and Ors., a copy of which is Annexure -1 to the contempt application.

3. By the aforesaid order, the writ Court, keeping in view the facts and circumstances of the case, had required the District Inspector of Schools, Lucknow to consider and pass appropriate reasoned and speaking order in regard to the payment of salary to the applicant with effect from January, 2017 after affording an opportunity of hearing to the affected parties within two months.

4. After issuance of notice, the respondent has filed an affidavit of compliance dated 1.7.2019. Along with compliance affidavit filed, an order dated 24.5.2019, a copy of which Annexure-1 to the aforesaid affidavit has been annexed per which the District Inspector of Schools, Lucknow has passed an order. By the said order, the selection of the applicant has itself been found to be bad and accordingly it has been indicated that it is not possible to make any payment to the applicant.

5. Contention of learned counsel for the applicant is that even though the opposite party has passed an order in purported compliance of the judgment and order dated 4.12.2018 passed by the writ Court vide order dated 24.5.2019 yet the same is patently contemptuous and consequently opposite party still runs in contempt to the order passed by the writ Court.

6. Elaborating the same, contention of the learned counsel for the applicant is that judgement and order dated 4.12.2018 passed by the writ Court was passed after considering the counter affidavit filed by the respondents. He contends that the reasons as indicated in the counter affidavit are the same reasons in the order dated 24.5.2019 and the same reasons which were taken by the opposite party in the counter affidavit had been considered by the writ Court while passing the judgement dated 4.12.2018 and consequently the reasons as indicated in the order dated 24.5.2019 by which claim of the applicant for salary has been rejected would be contemptuous.

7. Further elaborating the same, he contends that writ Court in Paragraph 37 of its judgement dated 4.12.2018 indicated that selection of the applicant is deemed approved and thereafter, the Committee of Management issued an appointment letter to the petitioner on 12.12.2014. He contends that vide the order dated 24.5.2019, the District Inspector of Schools, Lucknow has disapproved the appointment of the applicant which tantamounts to contempt of the writ Court and his own earlier order by which approval was granted which power of disapproval is not vested with the District Inspector of Schools, Lucknow.

8. Another ground is that once the writ Court has categorically indicated in the Paragraph 37 of its judgement that selection of the applicant is approved consequently the District Inspector of Schools, Lucknow is not vested with the power to disapprove the approved appointment of the applicant.

9. Yet another ground is that Section 16FF of U.P. Intermediate Education Act, 1921 (hereinafter referred to as "the Act, 1921") empowers District Inspector of Schools to disapprove the appointment of a person on the ground of lack of minimum qualification prescribed which is not attracted in the facts and circumstances of the instant case inasmuch as the appointment of the applicant has not been disapproved on the ground of lack of educational qualification of the applicant.

10. It is also contended that no power of disapproval vests with the District Inspector of Schools under the Act, 1921 other than the ground mentioned in Section 16FF of the Act, 1921 and hence the order dated 24.5.2019 is patently contemptuous.

11. On the other hand, Mr. Jauhari, learned Standing Counsel states that the order passed by the writ Court was to consider and pass appropriate reasoned and speaking order which admittedly has been passed vide order dated 24.5.2019 with respect to the payment of salary of the applicant and once appointment of the applicant has itself not been found to be in accordance with law thus the payment of salary has been disapproved.

12. Having heard the learned counsels for the parties and having perused the records what emerges is that writ Court vide judgement dated 4.12.2018 had required the District Inspector of Schools, Lucknow to consider and pass appropriate reasoned and speaking order with regard to the payment of salary to the applicant with effect from January, 2017. Admittedly, an order dated 24.5.2019 has already been passed whereby the appointment of the applicant has been disapproved by the District Inspector of Schools, Lucknow and consequently the payment of salary of the applicant has not been found to be tenable.

13. Learned counsel for the applicant has vehemently argued that the order dated 24.5.2019 is patently contemptuous keeping in view the grounds as already elaborated above.

14. However, a perusal of the order passed by the writ Court indicates that writ Court has left it open to the discretion of the District Inspector of Schools, Lucknow to pass appropriate reasoned and speaking order. The matter was left to the discretion of the District Inspector of Schools, Lucknow which is apparent from the fact that writ Court has only directed the District Inspector of Schools, Lucknow to consider and pass reasoned and speaking order. Had it been the intention of the writ Court that the appointment of the applicant stood deemed approved, as stood recorded in Paragraph 37 to the judgment, there would have been no occasion for the writ Court to have directed the District Inspector of Schools, Lucknow to consider and pass reasoned and speaking order inasmuch as nothing prevented the writ Court from directing the District Inspector of Schools, Lucknow to pay the salary to the applicant in view of the finding given by the writ Court paragraph 37 of the judgment.

15. Whether the District Inspector of Schools, Lucknow while passing the order dated 24.5.2019 has committed deliberate and wilful disobedience of the order of the writ Court would now have to be seen by this Court.

16. The law regarding contempt is well fortified inasmuch as contempt can only be said to be committed when there is deliberate and wilful disobedience of the order passed by a Court of law.

17. As already indicated above, the writ Court had left it open to the District Inspector of Schools, Lucknow to pass an order which would be apparent from the fact that the writ Court has consciously used the word "consider" and no mandamus has been issued by the writ Court to the District Inspector of Schools, Lucknow to pay salary to the applicant.

18. In order to attract the provision of contempt, there should be deliberate and wilful disobedience and defiance of the order passed by the writ Court. As indicated above, the order has already been passed keeping in view the direction of the writ Court to the District Inspector of Schools, Lucknow to consider and pass an order. Admittedly the order has been passed. Merely because the said order does not satisfy the applicant or is not in his favour, the same cannot be considered to be deliberate and wilful disobedience and defiance of the order passed by the writ Court.

19. In this regard, the Court may consider the law laid down by the Hon'ble Supreme Court per which there has to be deliberate and wilful disobedience by the contemnor in order to make out a case for contempt.

20. The Hon'ble Supreme Court in the case of Debabrata Bandopadbyay and others versus State of West Bengal and another reported in AIR 1969 SC 189 has held as under :-

"9. A question whether there is contempt of court or not is a serious one. The court is both the accuser as well as the judge of the accusation. It behoves the court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemner must be punished. It must be realised that our system of courts often results in delay of one kind or another. The remedy for it is reform and punishment departmentally. Punishment under the law of contempt is called for when the lapse is deliberate and in disregard of one's duty and in defiance of authority. To take action in an unclear case is to make the law of contempt do duty for other measures and is not to be encouraged."

21. The Hon'ble Supreme Court in the case of B.K. Kar versus The Hon'ble the Chief Justice and his companion Justices of the Orissa High Court and others reported in AIR 1961 SC 1367 has held as under :-

"7. Before a subordinate court can be found guilty of disobeying the order of the superior court and thus to have committed contempt of court, it is necessary to show that the disobedience was intentional. .................. There may perhaps be a case where an order disobeyed could be reasonably construed in two ways and the subordinate court construed it in one of those ways but in a way different from that intended by the superior court. Surely, it cannot be said that disobedience of the order by the subordinate court was contempt of the superior court."

22. The Hon'ble Supreme Court in the case of Niaz Mohammad and others versus State of Haryana and others reported in 1994 (6) SCC 332 has held as under :-

"9 . Section 2(b) of the Contempt of Court Act, 1971 (hereinafter referred to as 'the Act') defines "Civil Contempt" to mean "willful disobedience to any judgment, decree, direction, order, writ, or other process of a court...". Where the contempt consists in failure to comply with or carry out an order of the court made in favour of the party, it is a civil contempt. The person or persons in whose favour such order or direction has been made can move the Court for initiating proceeding for contempt against the alleged contemner, with a view to enforce the right flowing from the order or direction in question. But such a proceeding is not like an execution proceeding under CPC. The party in whose favour an order has been passed, is entitled to the benefit of such order. The Court while considering the issue as to whether the alleged contemner should be punished for not having complied and carried out the direction of the Court, has to take into consideration all facts and circumstances of a particular case. That is why the framers of the Act while defining civil contempt, have said that it must be willful disobedience to any judgment, decree, direction, order, writ or other process of a court. Before a contemner is punished for non compliance of the direction of a court the Court must not only be satisfied about the disobedience of any judgment, decree, direction or writ but should also be satisfied that such disobedience was willful and intentional. The Civil Court while executing a decree against the judgment debtor is not concerned and bothered whether the disobedience to any judgment, or decree, was willful. Once a decree has been passed it is the duty of the court to execute the decree whatever may be consequences thereof. But wile examining the grievance of the person who has invoked the jurisdiction of the Court to initiate the proceeding for contempt for disobedience of its order, before any such contemner is held guilty and punished, the Court has to record a finding that such disobedience was willful and intentional."

23. The Hon'ble Supreme Court in the case of Mrityunjoy Das and another versus Sayed Hasibur Rahaman and others reported in 2002 (3) SCC 739 has held as under :-

"13. Before however, proceeding with the matter any further, be it noted that exercise of powers under the Contempt of Courts Act shall have to be rather cautious and use of it rather sparingly after addressing itself to the true effect of the contemptuous conduct. The Court must otherwise come to a conclusion that the conduct complained of tentamounts to obstruction of justice which if allowed, would even permeate in our society (vide Murray & Co. v. Ashok Kr. Newatia & Anr.). This is a special jurisdiction conferred on to the law courts to punish an offender for his contemptuous conduct or obstruction to the majesty of law. It is in this context that the observations of the this Court in Murray's case (supra) in which one of us (Banerjee, J.) was party needs to be noticed.

"The purpose of contempt jurisdiction is to uphold the majesty and dignity of the Courts of law since the image of such a majesty in the minds of the people cannot be led to be distorted. The respect and authority commanded by Courts of Law are the greatest guarantee to an ordinary citizen and the entire democratic fabric of the society will crumble down if the respect for the judiciary is undermined. It is true that the judiciary will be judged by the people for what the judiciary does, but in the event of any indulgence which even can remotely be termed to affect the majesty of law, the society is bound to lose confidence and faith in the judiciary and the law courts thus, would forfeit the trust and confidence of the people in general."

14. The other aspect of the matter ought also to be noticed at this juncture viz., the burden and standard of proof. The common English phrase "he who asserts must prove" has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the 'standard of proof', be it noted that a proceeding under the extra-ordinary jurisdiction of the Court in terms of the provisions of the Contempt of Court Act is quasi criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond reasonable doubt. The observations of Lord Denning in Re Bramblevale 1969 3 All ER 1062 lend support to the aforesaid. Lord Denning in Re Bramblevale stated:

"A contempt of court is an offence of a criminal character. A man may be sent to prison for it,. It must be satisfactorily proved. To use the timehonoured phrase, it must be proved beyond all reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence.... Where there are two equally consistent possibilities open to the Court, it is not right to hold that the offence is proved beyond reasonable doubt."

15. In this context, the observations of the Calcutta High Court in Archana Guha v. Ranjit Guha Neogi 1989 (II) CHN 252 in which one of us was a party (Banerjee, J.) seem to be rather apposite and we do lend credence to the same and thus record our concurrence therewith.

16. In The Aligarh Municipal Board and Others v. Ekka Tonga Mazdoor Union and Others MANU/SC/0075/1970 : 1970CriL J1520 , this Court in no uncertain term stated that in order to bring home a charge of contempt of court for disobeying orders of Courts, those who assert that the alleged contemners had knowledge of the order must prove this fact beyond reasonable doubt. This Court went on to observe that in case of doubt, the benefit ought to go to the person charged.

17. In a similar vein in V.G. Nigam and others v. Kedar Nath Gupta and another MANU/SC/0419/1992 : 1992CriL J3576 , this Court stated that it would be rather hazardous to impose sentence for contempt on the authorities in exercise of contempt jurisdiction on mere probabilities.

18. Having discussed the law on the subject, let us thus at this juncture analyse as to whether in fact, the contempt alleged to have been committed by the alleged contemners, can said to have been established firmly without there being any element of doubt involved in the matter and that the Court would not be acting on mere probabilities having however, due regard to the nature of jurisdiction being quasi criminal conferred on to the law courts. Admittedly, this Court directed maintenance of status quo with the following words - "the members of the petitioner-Sangha who were before the High Court in the writ petition out of which the present proceedings arise". And it is on this score the applicant contended categorically that the intent of the Court to include all the members presenting the Petition before this Court whereas for the Respondent Mr. Ray contended that the same is restricted to the members who filed the writ petition before the High Court which culminated in the initiation of proceeding before this Court. The Counter affidavit filed by the Respondents also record the same. The issue thus arises as to whether the order stands categorical to lend credence to the answers of the respondent or the same supports the contention as raised by the applicants herein - Incidentally, since the appeal is pending in this Court for adjudication, and since the matter under consideration have no bearing on such adjudication so far as the merits of the dispute are concerned, we are not expressing any opinion in the matter neither we are required to express opinion thereon, excepting however, recording that probabilities of the situation may also warrant a finding, in favour of the interpretation of the applicant. The doubt persists and as such in any event the respondents being the alleged contemners are entitled to have the benefit or advantage of such a doubt having regard to the nature of the proceeding as noticed herein before more fully."

24. What comes out from a perusal of the aforesaid judgements is that for an act of contempt to be made out against the contemnor, there has to be a deliberate and wilful disobedience and defiance of the order passed by a Court of law and that the directions which are alleged to have been violated should be unambiguous.

25. Keeping in view the aforesaid discussion and the law in this regard, it cannot be said that there is any deliberate or wilful disobedience of the judgement and order dated 4.12.2018 passed by the writ Court.

26. Accordingly, the contempt application is rejected.

27. However, it would be open to the applicant to challenge the order dated 24.5.2019, in case he is so aggrieved, before the appropriate Court in appropriate proceedings.

28. Notices, if any, stand discharged.

Order Date :- 25.4.2023 Mohit Singh/-

(Abdul Moin, J.)

Unlock Advanced Research with PRISMAI

Allahabad High Court