Patna High Court
Gauri Shanker Jha vs Shivasati Prasad And Ors. on 13 January, 1964
Equivalent citations: AIR1964PAT446, 1964CRILJ439, AIR 1964 PATNA 446, 1964 BLJR 370
JUDGMENT Anant Singh, j. 1. This is a petition for action in contempt against the eight members of the Managing Committee of Dwarkanath Multipurpose School, Muzaffarpur. The District Magistrate, Muzaffarpur, the President; and the Regional Deputy Director of Education and the Principal, Engineering College, Muzaffarpur, are among the other members of the Managing Committee. 2. Petitioner Gauri Shanker Jha was a Science Teacher in the school having joined on the 5th August, 1954. The school has had an Audio-Visual section. But since it had no projector of its own, it used to arrange cinema shows for students with the local cinema establishments on payment of certain amounts to them. The petitioner was put in charge of the Audio-Visual section and used to receive an extra allowance of Rs. 8/- per month, for managing the work of the Audio-Visual section. The school, however, purchased its own cinema projector machine in November, 1955, but it had no operator of its own. It was at the instance of the Secretary of the school, opposite party No. 1, Shri Shivasati Prasad, Advocate, that the petitioner began to work also as operator of the cinema projector machine from November, 1955 "on the understanding that a total sum of Rs. 130/- (which w said to be a mistake for Rs. 30/-) inclusive of the previous allowance of Rs. 8/- would be paid to him from the month of November, 1955, after due approval of the Managing Committee". The remuneration of the petitioner was, however, fixed in the beginning at Rs. 20/- per month from July, 1959, to which the petitioner did not agree and, therefore, he made a representation to the Managing Committee for increasing his remuneration. At last, the remuneration of the petitioner was fixed at Rs. 30/- per month in January, 1961. The petitioner's remuneration, according to his claim at the rate of Rs. 30/- per month from November, 1955 to December, 1960, came to Rs. 1860/-; but the petitioner was paid only Rs. 712/- which he received under protest. The Managing Committee seems to have paid the petitioner at the rate of Rs. 8/- per month from November, 1955 to June 1959, totalling Rs. 352/- and at the rate of Rs. 20/- from July, 1959 to December, 1960, totalling Rs. 360/-; the aggregate being Rs. 712/- and nothing seems to have been paid from January, 1961. According to the petitioner, he had a claim for the balance amount of Rs. 1148/- after deducting the sum of Rs. 712/-, already received by him under protest. The allegation is that when the Managing-Committee did not show any readiness to pay the balance amount due, the petitioner sent a pleader's, notice dated the 12th December, 1961, by registered post to the Secretary, opposite party No. 1, for payment of the dues within a fortnight from the date of the receipt of the notice. On receiving no reply, the petitioner on the 24th April, 1962 sent a notice under Section 80 of the Code-of Civil Procedure to the President of the Managing Committee who was the District Magistrate of Muzaffarpur. The petitioner was soon thereafter on the 24th May, 1962, put under suspension by the Secretary under a resolution of the Managing Committee, and he was asked to show cause to the charge-sheet, which is Annexure C, to the following effect: "Please take notice that under decision of the Managing "Committee of the School held on 22-5-62 (copy of which is attached herewith) you are placed under suspension forthwith and the following charges are framed against you. You are required to submit your explanation within seven days of the receipt of this notice. Whereas instead of taking recourse to the regular procedure of approaching the Education Department authorities regarding your alleged claim for your honorarium for operating the cinema projector against the decisions of the Managing Committee, you served notices through Sri Upendra Mishra, Pleader, Sarai Syed Ali, Muzaffarpur, on the Secretary and members of the Managing Committee of the School, which behaviour of yours is subversive of discipline, the following charges are framed against you:- 1, You served notices against the Secretary and members of the Managing Committee making unjustified claim with regard to Projector operation work against the decisions of the Managing-Committee without first seeking the redress of your alleged claim through the proper departmental authorities and without exhausting the Departmental Channel. 2. Your above conduct is subversive of discipline and you are guilty of violating School's discipline. 3. You got the notices served making wrong statements therein. 4. If you like to be heard in person or if you like to produce some documentary evidence in support of your explanation the same should be communicated to the undersigned along with the explanation to be submitted by you." 3. The petitioner, in reply to the charge-sheet, submitted his explanation on the 30th May, 1962 as in Annexure D. It was said in the explanation that as he had no other channel of redress of his grievance for increased remuneration, he had no other alternative but to serve the Managing ''Committee with Pleader's notice. It also pointed out that there was nothing in the Education Code which prohibited the petitioner from taking recourse to law without approaching the department. He persisted that his claim for increased remuneration was justified. 4. The Managing Committee considered the explanation of the petitioner at its meeting held on the 15th June, 1962, and passed a resolution to the following effect: "Considered the explanation given by Sri Gauri Shankar Jha, Asst. Teacher of D. N. Multipurpose School, Muzaffarpur, against the suspension order and the charges framed against him. The Committee feels that his contention that his serving pleader's notice was valid in law and fact is thoroughly unfounded in so far as the Committee never made any commitment to him for the recovery of which he could go to the law Court and his action has been subversive of school discipline and resolved that he should be discharged. Further resolved that he be asked to show cause within 3 (three) days as to why he should not be discharged. Further resolved that the committee should meet on 22nd instant at 5 P. M. to consider the show cause, if any." The petitioner filed show cause on the 18th June, 1962, which is Annexure F, in response to the second notice of the Managing Committee, challenging the validity of the resolution of the Managing Committee on various grounds. The Managing Committee considered the second explanation of the petitioners at its meeting on the 22nd June, 1962 and adopted a resolution for discharging the petitioner; and, accordingly, the Secretary served a copy of the resolution on the petitioner on the same day, that is, the 22nd June, 1962, which is annexure G, saying that the petitioner stood discharged from the date of his suspension namely, the 25th May, 1962. 5. This petition was filed on 3-7-1962 about 39 days after the suspension order and after 11 days of his discharge order. We are informed that the petitioner has also since filed a suit in the Court of the Munsif, Muzaffarpur, for recovery of his claim, 6. On behalf of the opposite party, the petition is resisted on the ground that the Managing Committee as such was never committed to the petitioner to pay him any remuneration at the rate of Rs. 30/- from November, 1955, as alleged. It is said that after the projector machine was purchased in November, 1955, it was put in charge of one Shri Rajdeo Singh, a licensed operator employed in the local cinema house, Chitra Talkies. It is further contended that the petitioner was in charge of the Audio-Visual section of the school, and he was neither qualified to handle the machine nor did he hold any licence to do so, and, therefore, he could not have been put in charge of the operation of the machine. It was after the petitioner qualified himself to handle the machine and obtained the necessary license on the 30th June, 1959, under the Cinematograph Act, 1918, that on the representation of the petitioner dated the 14th August 1958, the Managing Committee by its resolution No. 3 dated the 31st July, 1959 sanctioned an honorarium to the petitioner at the rate of Rs. 20/- per month, which, on his further representation, was later, by another resolution, dated the 30th November, 1960, raised to Rs. 30/-per month with effect from the 1st December, 1960. The claim of the petitioner up to the end of November, 1960, was admitted only to be Rs. 712/-, and the further claim-for Rs. 1148/- was said to be wholly unjustified. It is further contended on behalf of the opposite party that because the petitioner made out a claim on false pretences, the claim being unfounded and baseless, and did not pursue the same in any Court of law, although several months had expired from the date of his first notice as also from the date of the second notice purporting to be under Section 80 of the Code of Civil Procedure, though no such notice was called for, the Managing Committee in consultation with some higher authorities thought that the petitioner was trying to overawe the authorities and generate an atmosphere uncongenial to the smooth working of the institution and subversive to the discipline of the school, and therefore, it took the steps for discharging the petitioner. It is contended that the Managing Committee never intended to throttle the course of justice. 7. Mr. Basudeo Prasad, appearing on behalf of the petitioner, has contended that the petition had a claim against the Managing Committee; he had given an ordinary notice to the Managing Committee and still another notice under Section . 80 of the Code of Civil Procedure for enforcement of his claim; and, therefore, a suit was imminent. The opposite party by drawing the charge-sheet against the petitioner for having served a pleader's notice tended to bring pressure upon the petitioner to give up his claim and in this view of the matter, it was contempt of Court. In support of his contention, reliance has been placed upon a decision in Pratap Singh v. Gurbaksh Singh, AIR 1962 SC 1172 and a decision in Yogeshwar Prasad Sinha v. Pratap Narain Sinha, 1963 RLJR 554 : (AIR 1964 Pat 245). 8. In the Supreme Court case, a certain amount was ordered by the Punjab Government to be recovered from the salary of a Government Officer due to loss sustained by the Government on account of the action of the Government Officer. The Government Officer filed a regular suit for a declaration that the order was void and ineffective, and it was after the filing of the suit that on the footing of a Government Circular to the effect that any recourse by a Government servant to the Court of law before exhausting the normal official channels of redress would be improper and subversive of good discipline and would warrant initiation of disciplinary action against the Government servant concerned, a departmental proceeding was drawn up against the officer for his going to the Court of law in violation of the Circular. The Supreme Court did not express any opinion on the validity of the Circular or whether it laid down any condition of service; but treating it only as an executive instruction in the case, it held by the majority view that it tended to interfere with the course of justice inasmuch as the commencement of the proceeding at a time when the suit was pending would exert pressure on the officer to abandon his suit or face the consequences of the disciplinary action and, hence, it was contempt of Court of the Senior Subordinate Judge of Amritsar in whose Court the suit was pending. 9. The decision in Webster v. Bakewell Rural District Council, (1916) 1 Ch D 300 was distinguished as being not on the point. That was n case in which the plaintiff was a yearly tenant of a cottage and land, adjoining a highway in the district of the defendants and forming part of a settled estate, of which a Mrs. Thornhill was the tenant for life. The plaintiff, yearly tenant, served the defendants with a writ for an injunction to restrain them from an alleged trespass on his land. "The solicitor for Mrs. Thornhill, the tenant for life, wrote to the defendants with a view to settle the dispute and at the same time wrote to the tenant to withdraw the writ, failing which his tenancy would be determined. It was held that threat to exercise one's legal right against another if he chose to continue any action started by him would be no contempt. 10. In the Patna Case also, the petitioner was a teacher of a school. He was demanding an increment of his salary for a certain period under certain rules of the Education Code. Not being paid the amount, he filed a suit for recovery of his claim. The Secretary of the School served a notice on the teacher taking objection to his filing the suit, and it was held that his conduct came in for contempt. 11. Contempt of Court in Oswald's Contempt of Court, 3rd Edition, page 6, is defined as follows: "To speak generally, contempt of Court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties litigant or their witnesses during the litigation," Rankin, C. J., in Anantlal Singh v. Alfred Henry Watson, ILR 58 Cal 884 at p. 895 : (AIR 1931 Cal 257 at p. 261) observed: "The jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the duo course of justice and that the purpose of the Court's action is a practical purpose and it is reasonably clear on the authorities that the Court; will not exercise its jurisdiction upon a mere question of propriety." It is the settled principle that the rule of contempt is not to be lightly invoked and is not to be used as a cloak by one party against another to cow him down into submission by making some fancie claim. It is intended to offer protection to the Court itself or to a party in judicial proceeding whose interest may be affected by the act of any party, even stranger, or the authority of the Court is lowered and the confidence of the people in the administration of justice is weakened. It is not necessary that the course of justice is actually interfered with, but it is only the tendency to interfere with the course of justice which would attract the jurisdiction of the Court under the contempt of Court: Act; but, at the same time, it is not necessary that the Court must act in every case of contempt. 12. It would appear that in the two case relied on behalf of the petitioner, litigations were actually pending and the effect of the action of the opposite party in both the cases was to exert pressure on the petitioner in each case either to compromise or to abandon his suit already pending before the Court. In the instant case, there was no such contingency, in that no suit was pending when the charge-sheet was drawn up against the petitioner. It is true that where a proceeding is imminent, there can be still a contempt of the Court; but the question is, if there was any proceeding imminent in the present case. The petitioner having served the first notice sat quiet for a little over four months whereafter he served the second notice on the 24th April, 1962, purporting it to be under Section 80, Code of Civil Procedure, which was not at all called for. The provisions of Section 80 are meant to govern an action against the Government or a public officer in respect of any act purporting to be done by such public officer in his official capacity. The managing Committee of the School, is not a Government institution and, therefore, the members of the Managing Committee are not public officers. Mr. Rasudeo Prasad, however, contended that at least the District Magistrate was the President of the Managing Committee by virtue of his office, and, therefore, he must be deemed to be a public officer. There is no substance in this contention. The District Magistrate cannot be sued as District Magistrate on behalf of the Managing Committee of the school, and, hence, he cannot be a public officer so as to attract the provisions of Section 80 of the Code of Civil Procedure. It was, therefore, not necessary to serve any notice under Section 80, Code of Civil Procedure, on any of the members of the Managing Committee before suing it. Thus, the notice under Section 80 given by the petitioner must be treated just a letter conveying the petitioner's demand to the members of the Managing Committee. None of the two notices demanding payment of the claim of the petitioner gave any time limit for the threatened action failing payment by the given time of a fortnight in the first notice. The threatened action did not come even after the expiry of over four months. The second notice in the circumstances could be equally treated as an empty threat. The Managing Committee, if it chose to take any disciplinary action against the petitioner for making an unjustified demand could not wait indefinitely. The notice, if it could be treated as indicating any imminence of the proceeding should have been definite in giving a reasonable time limit for the threatened action. Now, simply because an employee puts forth a demand for a certain claim by means of an uncertain notice, it cannot be presumed that a proceeding is imminent. It is open to an employer to take disciplinary action against his employee if any demand put forth by the employee is, in the opinion of the employer, found to be frivolous or unjust; and for that the employer is not to stay his hands by not taking any disciplinary action until the employee has taken his cause to a Court of law; otherwise it would be encouraging every employee to stay the hands of his employer by just making even a fancied claim. What may be objectionable and amount to contempt is it the employer takes disciplinary action against his employee merely for his going or even threatening to go to Court of law within a reasonable span of time for enforcing his demand, right or wrong but it the employer takes a disciplinary action against his employee for making a wrong, false or unjust claim by means of a vague notice on the threat of taking the matter to law Court, if not otherwise conceded, it is no contempt. It is an implicit right of the employer to take a disciplinary action against an employee for his misconduct. 13. The objection taken on behalf of the Managing Committee to the conduct of the petitioner was not so much for giving the notice of his claim but the focus was on his making a claim which, in the opinion of the Managing Committee, was not justified. A reference to the notice was made only as being the vehicle of the demand of the petitioner's claim which was considered unjustified. The judgment of the Managing Committee may not be correct, and it might well be challenged in a Court of law; but the Managing Committee cannot be taken to have in any way obstructed the course of justice by taking the proceeding against the petitioner for his making an unjustified demand as it thought when no proceeding was imminent at the time. Thus, by the charge-sheet there was no chance of any suborn or interference with the course of justice, particularly when the charge-sheet did not promise even by implication that it would be abandoned, if the petitioner withdrew his claim. It left the petitioner free to take his cause to law Court as indeed he has taken it after the conclusion of the departmental proceeding against him. He is not prejudiced in any way in his action for the claim which will be decided on its merits. I do not think it is a fit case in which the Court should invoke its jurisdiction under the Contempt of Courts Act, even if it were to be supposed that there was an imminence of a proceeding being taken to law Court. I would accordingly dismiss the petition. G.N. Prasad, J.
14. I agree.