Patna High Court - Orders
Dr.Dharam Sheela Prasad &Amp; Ors vs The Chancellor Of University O on 13 September, 2010
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.10032 of 2009
DR.DHARAM SHEELA PRASAD & ORS .
Versus
THE CHANCELLOR OF UNIVERSITY OF BIHAR & ORS .
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09 13.09.2010On 18.08.2009 the three petitioners filed the present writ application being C.W.J.C. No.10032 of 2009. Two of the petitioners are University Professors and the third is Reader. They are in different constituent Colleges of Patna University. Their grievance, inter alia, was that having served the University for two decades or more, they are now being noticed as to why their initial appointment dates be not shifted. The consequence whereof would be that not only they would be demoted from the post of University Professors to Readers and Readers to Lecturers, which promotional post they were holding for quite some time, having been granted those promotions by the University in accordance with law, but they would also have to face substantial reduction in their emoluments and refund substantial amounts, even though, they were never at fault at any stage. Their appointments and promotions had the sanction of statutory committees & authorities. It may be noted here that apparently such notices had been issued to large number of Teachers not only in this University but other Universities of Bihar as well. In some cases demotion orders, recovery from salary and reduction in pay scale had already been ordered in respect of Teachers including those who had retired long back. The matter was taken up for admission on 07.09.2009 when 2 Mridula Mishra, J., before whom the matter was listed, as per the roaster, having noticed the controversy, passed the following orders:-
"....Till disposal of this application, the University and its authorities are restrained from taking any coercive action against the petitioners and similarly situated persons." (emphasis supplied)
Upon change of roaster, the case was listed and taken up for admission after notice before this Court on 30.07.2010. When the matter was taken up Sri Vinod Kanth and other learned Senior Counsels appearing in the case drew attention of this Court to a communication dated 18.06.2010 (Annexure-10 to the Interlocutory Application by the petitioners), issued by the Secretary, Department of Human Resources Development, Government of Bihar (Sri K.K. Pathak, as he then was), recording the proceedings of meeting dated 15.06.2010 of Registrars of various Universities with the Secretary. This communication shows that in the meeting the Secretary had warned the Registrars that unless early action and recovery of amounts wrongly paid (because of allegedly wrong fixation of date of initial appointment) to the Universities employees was not recovered immediately and reported, then for the next 10 months University would not be given payment in respect salary of its employees. It was pointed out by the learned counsels that this clearly shows that the Teachers were 3 being held at ransom wherein notwithstanding the interim orders of this Court passed more than a year back, it was being overridden under threat of withholding grants for payment of future salaries. Though this was record of the proceeding, it made no mention about the interim order of this Court as noted above. Substantial number of Teachers in all Universities of Bihar were affected. This had created turmoil in the Universities even though the matter was sub judice with interim protection.
This Court, in view of the threat held out, in direct conflict with the interim order, as aforesaid, prima facie considered it to be an act of overreaching the orders of this Court and noticing the facts in this regard suo motu initiated contempt proceedings on 30.07.2010 against Sri K.K. Pathak, Secretary, Human Resources Development Department, Government of Bihar, Patna and directed the learned Secretary to appear in person and file his show cause in the Court on 18th August, 2010 at 2:00 PM.
Upon notice having been served to Sri K.K. Pathak with regard to his appearance and filing of show cause, on 10.08.2010 I.A. No.7088 of 2010 was filed by Sri K.K. Pathak personally sworn by him before the Oath Commissioner, Patna High Court. This interlocutory application was for recall of the order dated 30th July, 2010 by which this proceedings had been initiated. In this interlocutory application, it was, inter alia, stated that the said directions (Annexure-10) were given so that 4 the financial burden of the Universities comes down. It was stated in paragraphs-13&14 that while giving such direction to the University in the said meeting the Department being fully aware of the stay order of this Court, the Registrars were clearly told that those Teachers who had obtained stay order from any Court need not be disturbed and action be taken only against such Teachers who are not covered by any stay order. These statements have been sworn by Sri Pathak based upon information derived from the records of the case but regrettably even though Annexure-10 was the record of the proceedings of the meeting it did not reflect any such exception nor any other chit of paper to substantiate this fact much less contemporaneous document upon which this information was based was annexed to this application or brought on record. It was then stated as a matter of justification for the said order that it was being based on basis of earlier orders of this Court. However, in paragraph- 19 it is stated that in subsequent meeting of the Auditors and other Officers of various Universities dated 05.08.2010, it was clarified by the Director, Higher Education (not Sri K.K. Pathak) that wherever there were interim orders of Court no action should be taken. Let it be noted that this clarification only came after this Court had initiated contempt proceedings on 30.07.2010. Upon these pleadings, it was prayed that there being justification for the order and no intent to overreach the orders of this Court, this Court may recall the order dated 5 30.07.2010. It may be noted that there was no apology offered rather it was stated therein that the Court should not have initiated the proceedings.
On 16.08.2010 I.A. No.7277 of 2010 was filed, which was again personally sworn by Sri K.K. Pathak on 16.08.2010 before the Advocate Oath Commissioner, Patna High Court. In this interlocutory application, it was prayed that the personal appearance of Sri Pathak be dispensed with as Sri Pathak had on 13.08.2010 filed a Letters Patent Appeal against the order dated 30.07.2010, passed by this Court, which was still pending before the stamp reporter with defects. It was prayed that further proceedings pursuant to the said orders of this Court be stayed accordingly till disposal of L.P.A. On 18.08.2010, as earlier ordered, the case was listed but before brother J.N. Singh, J. as per the changed roaster. The two interlocutory applications, one for recall of the order and the other of stay of order dated 30.07.2010, were apparently pressed. J.N. Singh, J. thought it proper that the matter be dealt with by this Court and, as such, directed the matters to be placed before this Court after obtaining the permission of Hon'ble the Chief Justice. Let it be noted that Sri Pathak did not appear in person as ordered but on request of learned counsel as the matter was taken up, for that day alone his appearance was exempted.
After orders of the Hon'ble the Chief Justice, the 6 matter was placed before this Court on 20th August, 2010 but Sri Pathak chose not to appear. Learned Additional Advocate General-III pressed the interlocutory applications once again as would be seen from the order dated 20.08.2010. This Court reminded the learned Additional Advocate General-III that as the order of this Court was to appear in person and file show cause Sri Pathak must first appear and then his interlocutory application for dropping the proceedings would be considered. Court also requested the learned AAG-III to inform the Court on the next day the date and time which would be suitable for Sri Pathak to appear in the Court as he was a Senior Officer and must be busy. The case was adjourned for 24th of August, 2010 for the said purpose.
On 24th August, 2010 again Sri Pathak failed to appear nor did he authorized the learned counsel to intimate any date for his appearance rather instructed the learned AAG-III to take the stand that in view of Letters Patent Appeal having being filed the Court should not proceed further in the matter. This Court as per dated 24.08.2010 noted all the aforesaid facts and rejected the prayer on behalf of Sri Pathak clearly holding that mere preferment of appeal does not amount to stay, as an appeal filed and left unattended would take decade for being taken up thus frustrating all orders of the Court. Effectively thus, both the Interlocutory Applications stood disposed of. Again, on request of learned AAG-III this Court fixed 25th August, 2010 for 7 personal appearance of Sri Pathak.
On 25th August, 2010 when the case was taken up again Sri Pathak refused to appear. Learned AAG-III informed the Court that he had personally informed Sri Pathak about the orders of the Court well in time but because of his defiant attitude it was difficult for him to persuade Sri Pathak to appear in this Court. This Court passed over the case in order to enable Sri Pathak to realize his position and to enable learned AAG-III to persuade him.
On 26.08.2010 when the case was again listed Sri Pathak inspite of being informed by the learned AAG-III chose to be absent. He instructed learned AAG-III to insist upon the Court first to dispose of his pending interlocutory applications with regard to recalling and staying the order dated 30.07.2010 and unless that was done he would not consider appearing. Learned AAG-III informed the Court that even he has reminded Sri Pathak that Sri Pathak was in no position to dictate orders to this Court and he must first submit to the jurisdiction of this Court in the manner directed by this Court but Sri Pathak continues with his defiant attitude. These are all recorded in the order dated 26.08.2010 of this Court including the caution issued by this Court as to the consequences of non-appearance which was a matter independent of his initial actions. However, again at the request of learned AAG-III the matter was adjourned to 1st September, 2010 for appearance of Sri Pathak in the hope that 8 being a Senior Officer he would submit to rule of law instead of trying to dictate orders to this Court as if Court was his subordinate.
Again, when the matter was listed before this Court on 1st September, 2010 as the order sheet would disclose the learned AAG-III reported to the Court that he and the learned Advocate General, who had called Sri Pathak to his Chambers in the High Court, tried to persuade Sri Pathak to appear before the Court, as was repeatedly directed by the Court, but he continued with his defiant attitude and refused even to exceed to the request of the learned Advocate General and, as such, did not chose to appear. Upon this, Court requested the learned Advocate General to assist the Court in the matter. He appeared and clearly stated that Sri Pathak failed to abide by his advise. He was aware of the day to day proceedings in this Court, in such situation, both the learned Advocate General and learned Additional Advocate General-III clearly stated that they were not in a position to defend the defiant attitude of Sri K.K. Pathak and it would be open to the Court to take all coercive steps to secure his attendance to which they were in no position to object, as it is a matter of dignity, authority and majesty of the Court, which had been challenged and defied by Sri K.K.Pathak. This is reflected in the order dated 01.09.2010 of this Court. This Court reserved the matter for consideration as it thought proper not to react impulsively because the matter had reached 9 to a very serious proportion.
For the sake of the records, I may note that on 10.08.2010 State including the Secretary filed a Letters Patent Appeal being L.P.A. No.1261 of 2010 against the original interim order dated 07.09.2009 passed by the Court. The said Letters Patent Appeal was taken up by Division Bench of this Court on the very next day i.e. 11.08.2010, wherein the Division Bench in this intra Court appeal presided by Hon'ble the Chief Justice refused to entertain the appeal observing that if there was any confusion then it was open to the University or the appellant to approach the learned Single Judge for vacating the stay or for early hearing of the writ petition as may be advised. Thus, the order of the stay continued to operate.
As noted earlier, Sri K.K.Pathak personally filed I.A. No.7277 of 2010 on 16.08.2010, stating that on 13.08.2010 he had filed a Letters Patent Appeal against the order of this Court dated 30.07.2010, initiating proceedings in contempt and personal appearance, which was still pending in the Court. For the sake of records, I may note that the said L.P.A. No.1289 of 2010 was listed for admission before Division Bench presided by Hon'ble the Chief Justice but no steps were taken to either mention the matter or get it heard out of turn. At the cost of repetition, the fact that such Letters Patent Appeal has been filed and the prayer for stay of the proceedings before this Court, merely upon filing of the L.P.A. had already been rejected by 10 this Court by order dated 24.08.2010, holding that mere pendency of appeal does not amount to stay and it was open to the applicant to take steps for getting the appeal heard at an early date. No steps were taken, instead the Court was being directed by Sri Pathak to stay proceeding and decide his applications before he would consider obeying orders of the Court to appear personally, which stand even the learned Advocate General and learned AAG-III had told Sri Pathak could not take. Sri K.K.Pathak chooses to act in a defiant attitude even then.
Normally and ordinarily, upon the stand taken by learned Advocate General and learned AAG-III, as recorded in the order dated 1st September, 2010, this Court should have proceeded to secure the attendance of Sri Pathak by using all coercive powers i.e. in the shape of issuing non-bailable warrants for his production before the Court but to this Court it appears that the greater the power and authority of the Court the higher is the responsibility on the Court to exercise it with care, caution and responsibility. Judicial restraint is a virtue concomitant of every judicial dispensation. But that has also its limits. The action must not be egocentric in any case. It is not a matter of vindicating the personal ego of a Judge, that is in question, but here it is a question of dignity, majesty and authority of the Court. In a democratic country, as I believe, for the survival of the society it is necessary to abide by constitutional principles and honour rule of law. If an Executive 11 Officer and, that too a very Senior Officer, supposed to be a responsible Officer, chooses in this brazen manner to defy the authority of the Court and to defy the constitutional position enjoyed by the Court by virtue of Article-215 of the Constitution and defies all advise given to him by another constitutional functionaries, the Advocate General of the State, then what is to be done?
Having given my anxious consideration to the facts in respect of these proceedings, I regret to say that this case reflects a very sorry state of affairs which may, if not corrected, lead to complete collapse of rule of law.
In my view, the above facts have to be seen as two separate incidents which would have to be dealt with separately. First, related to the directions issued by the Secretary vide Annexure-10 dated 18.06.2010, which prompted this Court to initiate the proceedings for contempt and appearance of Sri Pathak, prima facie, on the ground that the said amounts to overreaching and overriding the orders of the Court. This is an independent event. What followed thereafter being the defiant attitude of Sri Pathak in not obeying the orders to appear is an independent events itself clearly designed to undermine the authority and dignity of the Court. This was cautioned by this Court long before (order dated 26.08.2010) as a distinct matter.
Now, coming to the first event i.e. Annexure-10, being the notings of the meeting held on 15.06.2010, as recorded 12 by the Secretary, Sri K.K.Pathak and communicated to the Universities by communication dated 18.06.2010 (Annexure-10 to the interlocutory application of the petitioner), what this clearly discloses is an imperative threat by the Secretary to the Universities to implement the directions for correcting the service tenure and consequently the pay scales of teaching and non-teaching employee of the Universities and making recoveries immediately, failing which their salary would be stopped for next ten months. There is no other exception. If one reads this along with the interim order passed over a year back, as quoted above, which clearly restrained authorities from taking any coercive action not only against the petitioner but similarly situated persons then all Universities under similar circumstances are consequently restrained from taking coercive steps so long as the stay continued. The tenure of the notings as circulated and contained in Annexure-10 shows total disregard to this. In view of the nature of the interim order where was the occasion to issue such directions.
Even though, this Court is not bound to consider the cause shown till contempt is purged and the Officer appeared, still if we look at the interlocutory application being I.A.No.7088 of 2010, which was filed by Sri K.K.Pathak before this Court for recall of the order dated 30.07.2010, which is in the shape of a show cause, two facts he has mentioned in his defence. Firstly, he was acting bona fide to recover the money 13 to reduce the financial burden of the Universities and secondly that in the said meeting he had clearly repeatedly told Officers not to take action against the Teachers who had obtained stay orders from any Court. The first is a justification for action and the second is a defence. So far as the second fact is concerned though as per the affidavit filed by Sri K.K.Pathak, this fact as stated was true to his information derive from the records of the case, no records in support thereof have been produced. Produce to the contrary are records of proceedings of that meeting as circulated under the signature of Sri Pathak himself which is Annexure-10 which even obliquely does not refer to any such thing said or done. It is an untrue fact not borne out of the records and obviously an after thought of Sri Pathak to create false defence, knowing it to be false. The position stands clarified when in the same affidavit he annexes a subsequent communication dated 05.08.2010 under the signature of the Director, Higher Education, Department of Human Resources, which for the first time speaks about interim order and giving effect thereto. Let it be noted that on 30.07.2010 contempt proceedings had already been initiated.
Upon these facts, I have no manner of doubt that Sri Pathak did mean to ignore the order of this Court and defy the same till better sense prevailed upon him though even then he did not have the dignity to himself writes to the Universities to ignore his earlier orders in view of the interim orders this 14 Court. He is clearly, thus, guilty of contempt. His show cause, even without his personal appearance is, thus, rejected, but while considering how to deal with him this Court would keep in mind that he has apart from creating a false defence, tried to purge the contempt as well.
Now, we come to the second aspect or the second event, which is solely because of Sri Pathak his own creation in course of the Court proceedings. It is the matter of his defiant attitude not to appear in person before the Court in spite of half a dozen direct orders in this regard and inspite of repeated advise to the same effect given by the learned Advocate General and learned Additional Advocate General-III.
From the facts noted above, it would be seen that the plea of Sri K.K.Pathak to recall the order, was not entertained by this Court. Sri Pathak's plea to stay operation of the order pending appeal was clearly rejected by this Court. Letters Patent Appeal challenging the first interim order, for violation whereof, the proceedings were initiated, was dismissed by the Division Bench. Sri Pathak was told that he could not dictate orders or sets terms for his appearance before the Court, still he defied the authority of the Court. He took no steps for expeditious hearing of his Letters Patent Appeal challenging the order initiating the proceedings. He consistently defied the orders of this Court to appear even when Court gave him an option to fix date and time as per his own convenience, he 15 refused. His conduct clearly showed that he took it to below his dignity or too demeaning to personally appear before the Court, which fact stands substantiated by his conduct. He had no problems of visiting the Chambers of the learned Advocate General in the High Court. He had even no problem in appearing twice before the Oath Commissioner in the High Court for swearing the affidavits in support of the interlocutory application but he had serious problems and reservation about obeying orders of this Court to appear before the Court. He continued to dictate to the Court as to how the Court should conduct the proceedings, which was deprecated by the learned Advocate General and learned Additional Advocate General-III and he was told so. Still he continued with his defiant attitude.
In my view, if these facts show anything they lead to only one irresistible conclusion that this Officer for some unknown and undisclosed reasons refuses to submit himself to the jurisdiction of the Court. He did not even heed to the advise to the learned Advocate General who apart from being constitutional functionary is the highest Law Officer of the State of which he is one of the Officers. This can only be termed as a well informed decision to undermine the authority of the Court and deliberately obstructing the proceedings of the Court. By this process he has not only undermined the authority and dignity of the Court but frivolously wasted valuable time of this Court on a matter of self prestige. We must remind ourselves 16 that no one is above law and this misgiving must be dispelled.
In such a situation, this Court passes the following orders:-
(1) It will be open for the State Government consider as to how it would deal with such Officer under it in the facts of this case. (2) For uselessly wasting time of this Court and creating a false defence as to the first event, Sri K.K. Pathak is imposed with a personal fine of Rs.25,000/-(Rupees Twenty Five Thousand) to be deposited by him within one week with the Bihar State Legal Aid Committee and receipt thereof deposited in these proceedings within the said time.
(3) Let a proceeding in the shape of criminal contempt proceedings be initiated against Sri K.K. Pathak, I.A.S. for undermining the dignity and authority of this Court by his defiant attitude and deliberately obstructing course of justice in relation to the second event aforesaid. The criminal contempt proceedings would be initiated in a separate independent file starting with copies of the orders of this Court. As per the provisions of Rule-7 (i) of the Contempt of Courts (Patna High Court) Rules 1985 let a notice be issued to 17 him in this regard in Form-1 with direction in terms of Rule 7(iii) to appear in person before the appropriate Bench of this Court on 27th September, 2010.
(4) That as the matter in relation to the proceedings as against Sri K.K. Pathak has thus been concluded by this Court in the manner aforesaid, let this case now be listed before the regular Bench for dealing with the merit of the writ application after obtaining orders of the Hon'ble Chief Justice.
Trivedi/ (Navaniti Prasad Singh, J.)