Allahabad High Court
Amit Mohan Prasad Addl. Chief Secry. ... vs Naresh Babu Tewari And Ors on 6 April, 2022
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 2 Case :- SPECIAL APPEAL No. - 135 of 2022 Appellant :- Amit Mohan Prasad Addl. Chief Secry. Med. And Health Govt.U.P. Lko. And Anr (In Capl 610 Of 2016) Respondent :- Naresh Babu Tewari And Ors Counsel for Appellant :- Amitabh Kumar Rai Counsel for Respondent :- Rishi Raj,V.P. Nag Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Subhash Vidyarthi,J.
Heard Sri Kuldeep Pati Tripathi, learned Additional Advocate General, Sri Amitabh Kumar Rai, learned Additional Chief Standing Counsel representing the appellant-State Authorities, Sri Rishi Raj learned Counsel representing respondent nos. 1 and 2 as well as Sri V.P. Nag, learned Counsel for respondent nos. 3 and 4.
This Special Appeal filed under Chapter 5 Rule 8 of the Rules of the Court impeaches an order dated 21.03.2022 passed by learned Single Judge in Contempt Application (Civil) No. 610 of 2016.
It has been argued by learned State Counsel representing the appellant-State Authorities that learned Single Judge while passing the order, under challenge herein, dated 21.03.2022 appears to have clearly exceeded his jurisdiction in as much as that while dealing with the contempt matter learned Single Judge has touched upon the merit of the controversy/issue in the matter, which is impermissible. In view of the aforesaid submissions, learned Counsel appearing for the appellant-State Authorities argues that the order dated 21.03.2022 which is under appeal herein, is not liable to be sustained.
On the other hand, Sri Rishi Raj learned Counsel appearing for respondents has argued that the instant Special Appeal is not maintainable for the reason that no Special Appeal lies against an order passed by learned Single Judge while he exercises contempt jurisdiction under the Contempt of Court Act. It has thus been argued on behalf of respondents that this Special Appeal is not maintainable and is highly misconceived, which is liable to be dismissed at the threshold.
We have considered the rival submissions of learned Counsel of respective parties and we have also perused the records available before us.
To determine as to whether the instant appeal (intra-court appeal) against the judgment and order dated 21.03.2022 is maintainable or not, we may have regard to the judgment of Hon'ble Supreme Court in the case of Midnapore Peoples Corporation Bank Ltd. and Others Vs. Chunilal Nanda and Others reported in (2006) 5 SCC 399. In the said judgment Hon'ble Supreme Court has gone in detail to consider the distinction where an intra-court appeal would lie against an order passed by Contempt Court and where it would not lie.
Inferences drawn by the Hon'ble Supreme Court in the said case of Midnapore Peoples Corporation Bank Ltd. (Supra), can be found in paragraph 11 of the report which is quoted herein under:-
"11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized thus:
I. An appeal under Section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.
II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.
III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.
IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of "jurisdiction to punish for contempt" and, therefore, not appealable under Section 19 of the CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under Section 19 of the Act, can also encompass the incidental or inextricably connected directions.
V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases)."
A perusal of the law laid down by the Hon'ble Supreme Court in the case of Midnapore Peoples Corporation Bank Ltd.(Supra), makes it clear as to under what circumstances an intra-court appeal would be maintainable against the order passed by the learned Single Judge in a proceeding drawn under Contempt of Court Act. Inference III as enumerated in paragraph 11 of the aforesaid judgment is relevant for the purposes of appreciating the issue arising in this Special Appeal. Hon'ble Supreme Court has opined that in proceedings for contempt it is not appropriate to adjudicate or decide any issue relating to merits of the dispute between the parties. The only jurisdiction available to Hon'ble Contempt Judge is to decide as to whether any contempt has been committed and if so, what should be the punishment and the matters incidental thereto. In view of the law laid down in the case of Midnapore Peoples Corporation Bank Ltd. (Supra), we now proceed to decide as to whether by passing an order dated 21.03.2022, learned Contempt Judge has touched upon the merits of the dispute between the parties or the said order can be said to have been passed only as a procedural measure in exercise of the contempt jurisdiction.
The respondents-petitioners instituted Writ Petition No. 1836 (SB) of 2014, with a prayer to issue direction to the opposite parties therein, to provide pay scale of Rs. 8000-13500 w.e.f. 26.09.2002 to the respondents-petitioners. An interim direction was issued by the Court on 19.12.2014 pursuant to which a committee was constituted under the Chairmanship of the Joint Secretary, Bureau of Public Enterprises, which considered the matter and recommended grant of pay scale of Rs. 8000-13500 to the respondents-petitioners. The said recommendations were sent to the State Government for final decision.
The writ petition filed by the respondents-petitioners namely Writ Petition No. 1836 (SB) of 2014 alongwith another Writ Petition No. 144(SB) of 2008, which was filed by the Officers Association, were finally disposed of by a Division Bench of this Court by means of judgment and order dated 05.10.2015 with the direction to the State Government that it shall take final decision on the recommendation of the Committee and shall pass orders accordingly.
In compliance of the said judgment and order dated 05.10.2015 the recommendation made by the Committee, dated 18.06.2015 was considered by the State Government and took a decision on 20.04.2017, whereby the recommendation made by the Committee, dated 18.06.2015 was not accepted by the State Government in its totality rather the State Government accepted the recommendation with modification to the extent that respondents-petitioners would be made available pay scale of Rs. 7450-11500 in place of their demand of pay scale of Rs. 8000-13500.
Thus, in compliance of the orders dated 05.10.2015 passed by the Division Bench of this Court in the writ petition filed by the respondents-petitioners, State Government had taken the aforesaid decision which is embodied in the Government Order dated 20.04.2017. However, prior to passing of the Government Order dated 20.04.2017 the respondents-petitioners had instituted contempt proceedings by filing Contempt Application (Civil) No. 610 of 2016.
In the contempt proceedings, the stand taken by the State Government was that in compliance of the judgment and order dated 05.10.2015, the State Government has taken a decision expressed in the Government Order dated 20.04.2017 and has thus, granted the pay scale of Rs. 7450-11500, in place of pay scale of Rs. 8000-13500, as recommended by the Committee.
Learned Single Judge while dealing with the contempt matter has passed an order on 21.03.2022 which is under challenge herein requiring the State officials to appear before the Court and explain as to why the charges may not be framed against them for willful and deliberate non compliance of the judgment and order dated 05.10.2015 passed in Writ Petition No. 1836(SB) of 2014.
When we peruse the said order dated 21.03.2022 passed by the learned Contempt Judge which is under challenge herein, what we find is that the learned Single Judge after perusing the compliance affidavit has given a finding that despite following the recommendation of the Committee, the State Government has provided the pay scale of Rs. 7450-11500. On the said basis, the learned Contempt Judge has inferred that the recommendation of the Committee which was constituted under the orders of this Court, has not been followed and there is no proper compliance of order of the Writ Court.
If, we consider the said observation/findings recorded by the learned Single Judge in his order dated 21.03.2022, what we find is that the learned Single Judge while exercising his contempt jurisdiction has entered into the merits of the Government Order dated 20.04.2017 whereby the recommendation made by the Committee was considered and a decision was taken to partly accept the recommendation by providing the pay scale of Rs. 7450-11500 in place of the pay scale of Rs. 8000-13,500 to the respondents-petitioners.
In our opinion, learned Single Judge has thus not only touched upon the merits of Government Order dated 20.04.2017 which appears to be the bone of contention between the State Government and the respondents-petitioners, but has also given a finding by expressing his opinion that though the recommendation made by the Committee was followed by the State Government, however, the pay scale different than the pay scale recommended by the Committee has been granted to the respondents-petitioners.
Thus, in our opinion the learned Single Judge appears to have clearly exceeded his jurisdiction under the Contempt of Court Act by entering into the merits of the claim of the petitioners qua, the Government order dated 20.04.2017 which was passed in compliance of judgment and order dated 05.10.2015 passed by this Court.
At this juncture, learned Counsel for the respondents has relied upon a judgment of a Co-ordinate Bench of this Court in the case of Roop Singh Vs. Vinay Kumar Jauhari and Others reported in (2008) ADJ 519 and has submitted that in the instant case as well the order dated 21.03.2022 is merely procedural in nature and as such it cannot be termed in any manner, to have touched upon the merits of the issue or dispute between the parties and thus, the Special Appeal is not maintainable.
So far as the principle of law enunciated by the Co-ordinate Bench in the case of Roop Singh (Supra), is concerned there cannot be any quarrel, however, it is to be noticed that in the facts of this case, as discussed above, the manner in which observation has been made and finding has been given by learned Single Judge while passing the order dated 21.03.2022, in our considered opinion, are beyond contempt jurisdiction for the reasons that in the penultimate paragraph of the order learned Single Judge has not only observed but, has given a finding in respect of the merit of the Government Order issued by the State Government on 20.04.2017.
For the reasons aforesaid, the Special Appeal is hereby allowed and the order dated 21.03.2022 passed by learned Single Judge in Contempt Application (Civil) No. 610 of 2016 is hereby set aside.
Learned Counsel for the respondents at this juncture prays that the respondents-petitioners may be given liberty to challenge the validity of the Government Order dated 20.04.2017.
It is needless to say that in case the respondents-petitioners are in any manner aggrieved by the said Government Order dated 20.04.2017, it will always be open to them to challenge the said Government Order by instituting appropriate proceedings as provided under law.
There will be no order as to costs.
Order Date :- 06.04.2022 Jyoti/-