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SMT. POONAM RANI versus DR. NARESH CHANDRA, SECY OF C/M (P.G.) COLLEGE & OTHERS

High Court of Judicature at Allahabad

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Smt. Poonam Rani v. Dr. Naresh Chandra, Secy Of C/M (P.G.) College & Others - CONTEMPT APPLICATION (CIVIL) No. 3700 of 2004 [2006] RD-AH 9070 (5 May 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 50

Civil Misc. Contempt Petition No. 3700 of 2004

Smt. Poonam Rani   Vs. Dr. Naresh Chandra.

Hon'ble D.P. Singh, J.

Heard counsel for the parties.

A.S. (Post Graduate) College, Mawana in Meerut is  affiliated to Ch. Charan Singh University, Meerut where the applicant was appointed on adhoc basis as a Lecturer in Commerce on 28.10.1988 after obtaining prior approval of the Vice Chancellor and she continued as a Lecturer even after 31.3.1989. She claimed regularization under section 31-C of the U.P. Higher Education Services Commission Act, 1980. However, the same was rejected by the Screening Committee and the fact was communicated to her vide letter dated 23.6.1992, forcing her to file writ petition no. 31005 of 1992 which was allowed vide judgment and order dated 15.7.1992 with costs and a direction was issued to regularize her services within a month from the date of submission of a certified copy and the artificial break of service was directed to be ignored and she was deemed to be in continuous service. Further direction was that she would be entitled for her salary also.

The Management, aggrieved against the said judgment, preferred Special Appeal no. 439 of 1992 where initially an interim order was granted but the same was dismissed as withdrawn on 23.4.1997. However, an application for recall of the order was moved but it was rejected vide order dated 31.7.2002 and  the order of the Learned Single Judge became final and enforceable and she was allowed to continue and her attendance was also being marked. The opposite party no. 1 thereafter came to be elected as a Secretary of the Committee of management of the institution and her case was again sent to the Screening Committee by the Management vide its letter dated 3.9.1997 and the Screening Committee vide its order dated 6.3.1998 regularized the services of the applicant as a Lecturer in Commerce on a vacant post with effect from 1.9.1989 whereafter a consequential order dated 27.4.1998 was passed.

The Director of Higher Education vide its order dated 3.6.2001 fixed salary in the revised scale treating her to be in continuous service with effect from 1.9.1989. The Management filed objections against the said order but it was found to be baseless vide order dated 11.2.2002 and the Management was further directed to comply with the earlier order dated 30.6.2001. But, the opposite party no. 1 this time approached the Finance Controller with the same set of objections who initially stayed the order of the Director dated 11.2.2002 vide his order dated 6.4.2002 inconsonance of which the opposite party no. 1 stopped the applicant from signing the attendance register and also stopped payment of salary. Nevertheless, the Finance Controller vide his orders dated 16.7.2003 upheld the orders of the Director dated 3.6.2001 and 11.2.2002. The opposite party no. 1 was still not satisfied and therefore he preferred writ petition no. 42320 of 2003 challenging the aforesaid two orders dated 16.7.2003 and 3.6.2001. A Division Bench of this Court vide judgment and order dated 23.1.2004 dismissed the writ petition upholding the judgment of the Learned Single Judge dated 15.7.1992 with a further direction to the opposite party no. 1 to pay the salary of the applicant in accordance with the judgment of the Learned Single Judge.

When the management did not comply with the writ judgments, she approached the Director of Education also, in vain. In the teeth of the two judgments, till date the arrears of salary from 1989 and the revised pay scale from 1996 till 21.8.1997 has not been paid to the applicant. Having no other option, she preferred this contempt petition.

Contempt notices were issued on 14.12.2004 to all the opposite parties and the opposite party no. 1 was directed to be present on the date fixed and one more opportunity was granted to comply with the two writ judgments. For ready reference, the order dated 14.12.2004 is quoted here-in-below.

"It is alleged that the orders dated 15.7.1992 and 23.1.2004 passed by this court has been violated. From a perusal of the petition, a prima facie case is made out.

Issue notice to opposite parties within a week returnable within six weeks. The opposite party no. 1 shall be present on the next date.

The counter affidavit may be filed within the aforesaid period or else charges may be framed after summoning the noticee.

However, one more opportunity is granted to the opposite party to comply with the order within a month.

The office may send a copy of this order along with the notice fixing a date after six weeks."

Notices fixing 7.2.2005 were served on all the opposite party nos. 1 to 3 but due to the transfer of opposite party no. 4, notices on him could not be served. The Finance Controller, opposite party no.2, filed his compliance affidavit annexing an order dated 3.1.2005 by which he directed the opposite party no.1 and the Principal to ensure payment of the arrears in compliance of the two writ judgments. However, the opposite party no.1 neither appeared nor filed his reply and also no application for exemption was filed. Subsequently, a counter affidavit was filed on 22.9.2005 but without any exemption application. However, the court ignored his disobedience of the directions dated 14.12.2004. Finding that the two writ judgments have not been complied, an order was passed on 8.3.2006 directing the opposite party no. 1 to appear in person on 4.4.2006. But again, he did not appear and preferred an exemption application stating that he was suffering from viral Hepatites and could not move out as he has been advised complete bed rest uptil 20.4.2006. The applicant was granted time to file reply to the averments made in the exemption application and without going into the merits of the reason for non-appearance, the court fixed 21.4.2006, when he appeared, but on the request of his counsel, the matter was adjourned for 2.5.2006 when arguments were heard and 5.5.2006 was fixed for delivery of orders.

It is admitted to the opposite party no.1 that the two writ judgments have till date not been complied in-as-much as arrears of salary from 1.9.1989 till 31.12.1995 and the revised arrears of salary from 1.1.1996 to 21.8.1997 have not been paid even though the Educational Authorities have already passed orders asking him to comply. He has justified non-compliance, which will be presently examined.

The opposite party no. 2 has filed a compliance affidavit stating that the services of the applicant have been regularized vide order dated 6.3.1998 passed by the Director of Higher Education and her pay scale has been fixed in the revised scale of Rs.8000-13500 with effect from 1.1.1996 treating her to be in continuous service from 1.9.1989 and vide another order of the Director of Higher Education dated 3.6.2001 the Principal of the college was instructed to pay the salary to the applicant. He has further stated that the opposite party no. 1 had raised some objections and had sought instructions through his letter dated 18.3.2004 and after reconsidering the case and the records, he was directed vide order dated 3.1.2005 to comply with the order dated 3.6.2001 and in case of non-compliance he was warned that he would be liable for disobedience of the judgments dated 15.7.1992 and 23.1.2004. It is urged that in spite of the aforesaid orders, the opposite party no. 1 did not send the salary bills therefore the payments could not be made.

The opposite party no. 1 has filed a detailed counter affidavit stating that in view of the permission obtained from the University for running extra section of B.Com 1st year in the college, the applicant was appointed for three months on 28.10.1988 on temporary adhoc basis as Lecturer in Commerce. On the expiry of the three months, she was granted extension till 31.3.1989 with a clear stipulation that her services would come to an end automatically on 31.3.1989 and in fact she did not work thereafter. A permanent post of Lecturer in Commerce was sanctioned by the Director of Higher Education vide letter dated 24.7.1989 with effect from 1.9.1989 and when the post was advertised the applicant preferred writ petition 17061 of 1989 and obtained an interim order on 14.9.1989 allowing her to continue to teach in the college till regularly selected candidate from the Commission joins. Since the applicant was allegedly not teaching in the institution from 1.4.1989, the Management filed stay vacation application and the said interim order was vacated on 27.2.1990 and accordingly she was paid the salary from 25.9.1989 to 16.2.1990. It is further alleged that by misleading the then Secretary, she started teaching in the institution, but by a resolution of the Committee of Management dated 28.9.1991 the Principal of the college was directed not to allow the applicant to work in the college. However, the applicant challenged her rejection by the Screening Committee through writ petition no. 31005 of 1992 and obtained the judgment dated 15.7.1992 in her favour. Even though her case was different to that of Dr. Siya Ram Singh but she obtained the aforesaid judgment fraudulently and by concealing the stay vacation order and the fact that she was not working in the college in July, 1992 and was never paid salary from the salary account. Though special appeal was filed against the judgment dated 15.7.1992, on her undertaking that she will not claim salary from the management, the special appeal was withdrawn by the Management on 23.4.1997 where-after the opposite party no. 1 was elected as Secretary who filed a recall application for recalling the order dated 23.4.1997 but the same was rejected on 31.7.2002. It is further alleged that fixing the date of appointment of the applicant as 1.9.1989 was misleading as she was not working on that date in the institution and even though all documents were produced before the Director of Higher Education and the Finance Controller, they did not recall their order dated 3.6.2001 even though it was brought to the notice of the Principal Secretary that salary for about eight years has been directed to be paid to the applicant from the State Exchequer which was not justified. He has further urged that the order of the Finance Controller dated 16.7.2003 for releasing the payment to the applicant was also illegal. Thus, he challenged the order dated 3.6.2001 and 16.7.2003 in writ petition no. 42332 of 2003 but the same was dismissed on 23.1.2004. It is also urged that since there was a stipulation in the letter dated 3.6.2001 that if any irregularity is found in future in the papers for regularization or fixation of pay of the applicant then the entire responsibility would be on the Management and the Principal and therefore the writ judgment cannot be implemented by him as on the facts stated above, the entire regularization and pay fixation of the applicant was irregular and fraudulent because the applicant did not work in the institution from 1.4.1989 to 22.8.1997.

This entire defence which has been set up in the counter affidavit was the basis of writ petition no. 42332 of 2003 wherein a specific ground was taken that the applicant was not entitled to her arrears of salary from 1.9.1989 to 22.8.1997 because she joined the institution only on 23.8.1997. In fact the second prayer in the writ petition was to the effect that the educational authorities, viz., the Director of Higher Education, Finance Controller, Higher Education and the Principal Secretary, Higher Education be mandated not to pay salary to the applicant as Commerce Lecturer from 1.9.1989 to 21.8.1997. A Division Bench of this Court after considering the ground raised and stand taken, which is identical to that raised in the present contempt petition, has passed the following directions.

"Hence the petitioner is directed to pay salary of the respondent no. 4 for the period in question and regularize her in service retrospectively in accordance with the judgment of the learned Single Judge."

(Respondent no. 4 is the applicant and the petitioner is the opposite party no. 1 in the present contempt petition.)

From the above, it is evident that the opposite party no. 1 is harping on the same defence which was raised before the Division Bench of this Court and rejected. The same grounds which have been rejected by the Division Bench of this Court are being set up as the reason for non-compliance of the writ judgment of the learned Single Judge. It may be worthy of note that the judgment of the Division Bench has not been challenged but this Court is being asked to sit in appeal over that judgment, which is impermissible. Therefore, the aforesaid defence is nothing but a result of defiance of the directions of this Court and has to be turned down with a heavy hand. No person or authority can raise a ground of defence which has already been raised, considered and rejected by a Court of law, especially when it was never challenged.

A frail attempt was made that before proceeding further the court should frame formal charges.

In the opinion of the Court, on the facts of this case, it is not necessary. Where the charge is simple and clear from the petition, it would not be necessary that a formal charge is framed. Though, normally, this Court frames charges but there is no such procedure provided under the Contempt of Courts Act, however, it goes without saying that the procedure should be fair and reasonable opportunity should be given to the contemnor to defend himself. In the present case, while issuing notice on 14.12.2004, the contemnor was made aware of the charge against him and in pursuance thereof he has entered his reply which is in the nature of a defence and he has not raised any plea of vagueness as what sort of commission or omission is required off him for compliance of the order. It is a simple case where the contemnor has to play his own part in enabling the payment of salary by submitting the salary bills for payment from the State Exchequer. It is apparent from the counter affidavit that the contemnor has understood why he has been noticed. Therefore, considering the ratio of the Apex court in the case of C.K. Daphtary Vs. O.P. Gupta AIR (1971 SC 1132), it is not necessary in the present case to frame charges.

It is not in dispute that the salary is to be paid from the State Exchequer by the respondent nos. 2 and 3, but it can only be paid when the bills are prepared and submitted by the Management, i.e. under the signatures of Dr. Naresh Chandra and the Principal. All the educational authorities have already passed orders holding the applicant to be in continuous service from 1.9.1989 and her pay has also been fixed and consequent directions have been given for payment of arrears from 1.9.1989 in consequence of the two writ judgments, but Dr. Chandra, without any plausible or reasonable grounds is defying the orders and judgments. First the Writ Court and then the Contempt Court gave Dr. Chandra several opportunities, but he has not budged from his obstinate stance. It is not a question of mere payment to the applicant, but a solemn requirement to uphold the rule of law.

For the reasons above the court holds Dr. Naresh Chandra, the opposite party no. 1 guilty of wilful defiance and deliberate violation of the judgment dated 15.7.1992 passed by the learned Single Judge of this Court in writ petition no. 31005 of 1992 and the judgment and order dated 23.1.2004 passed by the Division Bench of this court in writ petition no. 42332 of 2003.

The counsel for Dr. Chandra has urged that even if he is guilty he cannot be punished. It is contended that in view of the new section 13(b) introduced vide Amendment Act no. 6 of 2006, since truth has been made a valid defence, he cannot be punished because whatever he is saying in defence is truth. The argument is entirely misconceived and mischievous. It would be appropriate to note the new section 13 which is quoted below.

"13. Contempt not punishable in certain cases- Notwithstanding anything contained in any law for the being in force-

(a) no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that if substantially interferes, or tends substantially to interfere with the due course of justice;

(b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bonafide."

A bare perusal of section 13 (b) shows that truth has been made a valid defence but only with the permission of the Court and where it is in public interest and is bonafide. Neither such permission has been sought either orally or in writing, nor has it been given. Further, assuming what the contemnor says is truth, that has already been examined by a Division Bench of this Court and has already been rejected. The section neither gives a right to the contemnor to usurp the power of a appellate court and question the findings and the judgment of the Division Bench, nor empowers the contempt Court to reopen a closed issue, especially when the judgment was never challenged. Even if such a power is read into it, that defence is not available in the present set of facts. Firstly because it is not bonafide, because this ground that the applicant was not in service on 1.9.1989 was raised before the Special Appellate Court by the Management and then without inviting a judgment on it, they withdrew it, and again before another Division Bench where in spite of this allegation it rejected the writ petition. Secondly because in the larger public interest it is necessary that the two writ judgments have to be given its due worth or else people may loose faith in the justice delivery system.

In view of the orders passed on the order-sheet today, put up 25.5.2006.

Dt: 5.5.2006

AU


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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