Allahabad High Court
Ambrish Dwivedi And Others vs Sri Anand Kumar Singh, M.D., Pradeshik ... on 24 April, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Neutral Citation No. - 2025:AHC-LKO:25137 Court No. - 29 Case :- CONTEMPT APPLICATION (CIVIL) No. - 3413 of 2023 Applicant :- Ambrish Dwivedi And Others Opposite Party :- Sri Anand Kumar Singh, M.D., Pradeshik Cooperative Dairy Federation Ltd., Lko. And Another Counsel for Applicant :- Pradeep Kumar Tripathi Counsel for Opposite Party :- Lalit Shukla Hon'ble Shree Prakash Singh,J.
Order on C.M.Application No. 04 of 2024-Recall
1. Heard Sri Pradeek Kumar Tripathi, counsel for the applicants and Sri Lalit Shukla, counsel for the opposite party.
2. The present application for recall of the order dated 20.2.2024 passed by this Court in Contempt Application (Civil) No. 3413 of 2023 has been moved and the order dated 20.2.2024 is quoted hereinunder:-
"Case called out.
None present for the petitioners.
Sri Lalit Shukla, learned counsel for opposite party submits that the order passed by the writ court has been complied with. He further submits that the petitioners have certain objections with respect to calculation of amount on interest part.
Since the calculation with respect to gratuity is the disputed question of fact and that can be raised before the appropriate forum, at appropriate stage.
In view of the aforesaid, no contempt is made out at this stage.
The contempt petition is dismissed.
Notices are discharged.
Consigned to record."
3. Learned counsel appearing for the applicants submits that the Writ A No. 6142 of 2022(Ambrish Dwivedi And Others Vs. State of U.P. and Ors) was filed with a prayer of payment of interest on delayed payment of the gratuity as well as leave encashment to the petitioners therein. The Writ Court while passing the order dated 8.5.2023 in the aforesaid writ petition, has noted the submission of counsel for the petitioners therein, that the petitioners retired in the year 2014 to 2020 whereas, the gratuity was paid in the month of August, 2021 and therefore, considering the facts and circumstances of the case and particularly, the provision of section 7(3A) of payment of Gratuity Act 1972, directed the respondents to ensure the payment of interest @7% p.a. on the amount of delayed payment of gratuity, from the date of their retirement till the actual payment made to them, within period of three months. The Writ Court was conscious sufficiently and therefore, it was further provided that if amount is not paid within a period of three months, the same shall carry further interest @ 7% p.a. on the unpaid interest. He submits that this order was passed after hearing the parties and this has attend finality. The order dated 8.5.2023 passed in Writ A No. 6142 of 2022 is read as follows:-
"1. Present petition has been filed by the petitioners claiming interest on delay in payment of the gratuity as well as the leave encashment to the petitioners.
2. Submission of learned counsel for the petitioners is that the petitioners retired in the year 2014 to 2020 (as detailed in Annexure No.1) whereas the gratuity was paid in the month of August, 2021 as detailed in Para -18 of the writ petition.
3. Considering the fact that on payment of gratuity, the statutory interest is prescribed under Section 7(3A) of the Payment of Gratuity Act, the present petition is disposed off directing respondents to ensure payment of interest at the rate of 7% per annum on the amount of delay in payment of gratuity.
4. The amount of interest shall be paid from the date of retirement till the actual payment as indicated in Para - 18 of the writ petition.
5. The interest as directed to be awarded herein above, shall be paid to the petitioners positively within a period of three months from the date of production of a certified copy of this order.
6. In case, the amount is not paid within a period of three months as directed above, the same shall carry a further interest at the rate of 7% on the unpaid interest as directed above.
7. The writ petition is disposed off in above terms.
8. This order has been passed in the presence of Shri Shanker Lal, learned counsel appearing for respondent no. 2."
4. Referring the aforesaid, he submits that on some part of the delayed payment, the interest has been paid whereas, it has been misrepresented before the Court that the order passed by the Writ Court has been complied with. He has drawn attention towards the counter affidavit filed to the application for recall and submits that in fact, the opposite parties have failed to reply that the interest on the each and every part of the delayed payment of gratuity have been done.
5. In addition, he submits that in fact the counsel for the applicants could not appear before the Contempt Court on 20.2.2024, which is apparent from the order itself and on the sole submission of counsel for the opposite party, the contempt petition was dismissed assuming that the order passed by the Writ Court has been complied with and in fact the counsel for the opposite parties did not bring the true facts before the Court and thus, has misrepresented and therefore, submission is that the order dated 20.2.2024 may be recalled.
6. On the other hand, learned counsel for the opposite party has vehemently opposed the submissions aforesaid and submits that since there was a dispute with respect to delayed payment of the interest on the rest of the gratuity amount and therefore, that is a disputed question of fact and that cannot be adjudicated at this stage, in a contempt petition. He also added that subsequently, coordinate bench of Contempt Court has also passed several orders in other contempt petitions, where the other such petitioners/applicants have been relegated before the appropriate forum for adjudication of such factual disputes, thus, submission is that the applicants are not entitled for any relief. Adding his arguments, he submits that review or recall application is not maintainable where the contempt petition is decided on merits.
7. Having heard counsel for the parties it transpires that the Writ Court while passing the order on 18.5.2023 in Writ No. 6142 of 2022 issued direction that the opposite party shall ensure the payment of interest with a specific rate of 7% p.a. on the amount of delayed payment of gratuity. It is also apparent from the order dated 20.2.2024 that on the date of passing of the order, the counsel for the applicants was not present and solely on the statement given by cousnel for the opposite party, this Court has dismissed the contempt petition while considering that there was some disputed question of fact which remains to be adjudicated.
8. In fact gist of the argument of counsel for the applicants is that admittedly, there was delay in payment of interest and some interest on the delayed amount of gratuity was given and so far as the first, second and third installments are concerned, the interest on the delayed payment has not been done.
9. The direction of the Writ Court is very clear in its terms that 7% p.a. interest on the delayed amount of payment of gratuity shall be paid and further, it has also been directed by the Court that the interest shall be paid from the date of retirement till the actual payment as is indicated in paragraph no. 18 of the writ petition. In fact this fact was not brought into the knowledge of the Court on the date of passing of the order dated 20.2.2024 and rather it was intimated that the order has been complied with and the contempt court under the impression that the order passed by the writ court has been complied with in letter and spirit dismissed the contempt petition.
10. The objection is raised by counsel for the opposite party that once a contempt application is dismissed/disposed of, there is no provision for recall of such order.
11. Time and again, this issue has been dealt with by the several verdicts of the Apex Court as well as the High Court. In the case of State vs Baldev Raj 1991 SCC Online All 1070. It has been held that the Contempt of Court Act, 1971, laid down the procedure and there is no express inherent power to the High Court for recall or review. Paragraph no. 13,19 and 20 of the aforesaid judgment are quoted hereinunder:-
"13. Obviously the Contempt of Courts Act, 1971 not only defines civil and criminal contempt but also lays down the procedure. This Act does not expressly give any inherent power to the High Court in matter of contempt of Court. It provides in S. 19 appeals from order or decision of the High Court in the exercise of its jurisdiction to punish for contempt. When the Act does not confer inherent power or power of recall or review and provides remedy against order or decision in the matters of contempt. the power of the High Court of recall or review in matters of contempt cannot be invoked.
19. It is evident that this ruling relates to the inherent powers of the High Court in respect of power exercised under Art. 226 of the Constitution. Facts of the case werequite distinguishable. Person at whoseinstance power of review was exercised was notearlier party to the petition. We are of theopinion that the powers of the High Courtunder Art. 226 are much wider to securenatural justice. At the risk of repetition it can besaid that the powers of the High Courtin matters of Contempt of Courts have beenlimited by the preamble of the Contempt of Courts Act, 1971. It provides elaborate procedureand then appeal against the order or decisionof the High Court. We are of the opinion that the Act impliedly excludes power of recallor review. However, as stated earlier even aftera final order or decision in matter of Contempt of Court a High Court has inherent power to correct clerical or typing mistake.
20. In the instant case we have heard Baldeo Raj and learned AGA at length. Contention of Beldev Raj that the case was fixed for hearing and on that date judgment could not have been delivered. Firstly this cannot be called a mistake. It is not unusual that after hearing judgment is delivered the same day. If a party refuses to argue and participate in hearing by making someappli cation of frivolous nature the High Court can pronounce judgment. This cannot be called a mistake apparent on the record or a mistake of clerical nature. Baldeo Raj further vehemently argued that the bench was biased against him. This can be a matter to be looked into in appeal but cannot be called a clerical mistake. Baldeo Raj was much aggrieved because at one stage the bench hearing the contempt case against him called the police and then expressed regret. Once again this is a matter to be considered in appeal and cannot be called a mistake apparent on the face of the record or a clerical mistake. Contention that Baldeo Raj did not get reasonable opportunity of hearing can be a ground of appeal but not for review or recall of ajudgment and order of conviction or correction of clerical mistake."
12. Further, the reliance has also been placed on the law rendered in the case of Mahaveer Prasad Verma Vs. Central Administrative Tribunal, Lucknow reported in 2013 SCC OnLine All 13904. Paragraph no. 4 of the abovesaid judgment is reproduced hereinunder:-
"By the order dated 10.1.2012, the contempt petition filed by the petitioner, was dismissed in his absence on the ground that the petitioner respondent has not moved any application to bring on record the successor since the contemner was transferred. Tribunal noted that an application for recall of an order passed in a contempt proceeding, is not maintainable. So far as the finding of Tribunal that recall/review application is not maintainable, seems to be correct. Virtually, recalling of the order dated 10.1.2012, will amount to review of earlier decision was was passed with the finding on merit to the extent that successor officer has not been brought on record. Review/recall or appeal are the statutory remedies, vide AIR 1966 SC 641, Harbhajan Singh v. Karam Singh and others, 1988 (14) ALR 706, Vijai Bahadur Vs. State of U.P., 1995 (26) ALR 627, Ram Jiwan Singh and others Vs. The District Inspector of Schools, Kanpur and others, 1979 (5) ALR 168, 1998 (33) ALR 456, New India Assurance Co. Ltd. Vs. Smt. Bimla Devi and others, 1997 (88) RD 562, Smt. Shivraji and others Vs. Dy. Director of Consolidation, Allahabad and others, AIR 1970 SC 1273, Patel Narshi Thakershi and others Vs. Pradyumansinghji Arjunsinghji, 1987 (13) ALR 680, Dr. (Smt.) Kuntesh Gupta Vs. Mgt. of Hindu Kanya Mahavidyalaya, Sitapur etc., AIR 1964 SC 436, Laxman Purushottam Pimputkar Vs. The State of Bombay and others, and AIR 1965 SC 1457, Patel Chunibhai Dajibha etc. Vs. Narayanrao Khanderao Jambekar and another. Unless provided under the Act, no application for review/recall may be moved. The contempt of Courts Act, 1971 does not contain any provision for review of a judgment. Hence the impugned order dated 13.9.2012 does not seem to suffer from any impropriety or illegality"
13. It has been said that in the aforesaid case after passing the order, the otherside was trying to persuade the court for review/recall of the order and the same was denied.
14. The reliance has also be placed in the case of Durga Nagpal Vs. Committee of Management, Patronage Institute of Management Studies reported in 2013 SCC OnLine All 13298 and has referred paragraph nos. 17 and 19 has been referred. Paragraph nos. 17 and 19 of the abovesaid judgment are quoted hereinunder:-
"17. Keeping in view the proposition of law discussed hereinabove, there appears to be no room of doubt that once contempt proceeding was dropped and contemnor was discharged, it was not open for the Contempt Judge to review his own order after entertaining the miscellaneous application for modification of final judgment. Since accused were discharged (supra) and proceeding was closed, the miscellaneous application for modification was not maintainable. Thus, Contempt Judge seems to have passed the impugned order without jurisdiction. Since the Contempt Judge exercised jurisdiction without any authority, the special appeal seems to be maintainable. Arguments advanced by the learned counsel for the respondents with regard to maintainability of special, seems to be misconceived and is not sustainable.
19. It is not so that respondent petitioner is remediless. Instead of moving a miscellaneous application for modification of order, the respondent petitioner could have filed fresh contempt petition on account of alleged violation of undertaking given before the Court as it constitute fresh cause of action or an application under Article 215 of Constitution of India could have been moved for action and punishment by the appropriate Court on account of violation of undertaking given and relied upon by the Court while discharging contemnor."
15. Referring the aforesaid, it has been emphasized that while moving the modification application after the final judgment was passed, request was made for reviewing the order and the same was rejected and it was held that Contempt Judge has no power to revive its own order. So far as the issues involved in the instant matter is that by misrepresenting, the contempt petition got dismissed. In this background, this has become a conspicuous case in facts and law where, the effect and meaning of the misrepresentation has to be applied/interpreted.
16. Undoubtedly, there is no provision of review or recall in the contempt of Court Act 1971, but it does not mean that the proportion of the settled laws would also be redundant for the purpose of recall of such order.
17. This Court may refer the case Ram Chandra Singh Vs Savitri Devi reported in (2003) 8 SCC 319 wherein, it has been held that 'fraud is a conduct either by letter or words which induces the other person or authority' to take definite stand as a response to the conduct of the former either by word or letter and the misrepresentation itself amounts to fraud and misrepresentation consist in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood.
18. Further, in case of United India Insurance Co. Ltd. Vs. Rajendra Singh 2003 SCC 581 it has very specifically been held in paragraph nos. 15 and 16 that no Court or tribunal can be regarded as powerless to recall its own order if the same is wrangled by misrepresentation or fraud. Paragraph nos. 15 and 16 of the abovesaid judgment are quoted hereinunder:-
"15. It is unrealistic to expect the appellant Company to resist a claim at the first instance on the basis of the fraud because the appellant Company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the Company to file a statutory appeal against the award. Not only because of the bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.
16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim."
19. Again in the case of Himalayan Cooperative Group Housing Society Vs. Balwan Singh (2015) 7 SCC 373, it has been said in so many words that the Court is not bound by the statement or admissions of the lawyer as the matter of law or legal conclusions. In this regard paragraph no. 32 of the aforesaid judgment is quoted hereinunder:-
"32. Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the court is bound by the lawyer's statements or admissions as to matters of law or legal conclusions?"
20. Having at glance on the aforesaid settled laws, it is borne out that so far as the case of Baldev Raj(Supra) referred by counsel for the opposite party, the same was against an order of conviction of contemner and instead filing an appeal which is provided in the statue, a recall application was moved, whereas, the remedy of the appeal lies under section 19 of Act 1971 and therefore, the aforesaid factual matrix of the case is altogether different than that of the present case.
21. So long as the case ofDurga Nagpal(Supra) is concerned, the facts of this case are different to the instant case as in the abovesaid case, the ground of misrepresentation or fraud was not involved neither raised nor decided and therefore, the ratio of the abovenoted judgment would also not be applicable in the present matter.
22. Lastly, the case ofMahaveer Prasad Verma(Supra) which is cited by counsel for opposite party reveals that review/recall was moved, which was rejected by the Central Administrative Tribunal in default and the same was assailed before the High Court in the writ jurisdiction and thereafter, the same was quashed and the contempt petition was restored and the tribunal was directed to decided the same to bring the successor on record, thus, the abovementioned case is factually different to the instant case.
23. The recall application is moved on the ground that it has unfairly been submitted before the contempt court that the order passed by the Writ Court has been complied with though, it was misrepresented before the Court. In the recall application in paragraph nos. 4, 5 and 6, it has specifically been stated that the interest of late payment of gratuity of some installments have not been paid yet and from perusal of the reply in paragraph no. 12 of the counter affidavit/objections filed by the opposite party, it is apparent that the same has not specifically been denied, rather it has been said that as per the availability of the funds, the payment has been made, but what happened with respect to the payment of interest as per the rate of 7% on the delayed payment is silent.
24. It is trite law that misrepresentation is amount to fraud and fraud vitiates all proceedings and this Court is of considered opinion that this law will also similarly apply in the contempt petition in an event, the order is passed on misrepresentation or fraud on behest of either of the parties.
25. In light of the aforesaid submissions and discussions, this Court is of considered opinion that the recall application is maintainable.
26. Consequently, the recall application succeeds, thus, the recall application is allowed and the order dated 20.2.2024 is hereby recalled.
Order on Contempt Petition
1. The Contempt Application (Civil) No. 3413 of 2023 is restored on it's original number.
2. List/put up this matter in the next month.
Order Date :- 24.4.2025 Mayank