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2001 DIGILAW 423 (ALL)

SHAKUNTALA GOSWAMI v. . SAROJ CHAUDHARY

2001-05-03

SUSHIL HARKAULI

body2001
SUSHIL HARKAULI, J. ( 1 ) I have heard Sri T. P. Singh, senior advocate, who appeared for the petitioner before lunch and who desired that this case should be finally disposed of today itself. After lunch Sri T. P. Singh did not appear and Sri P. K. Goswami advocate representing the petitioner stated that he would argue the case. I have heard him also at great length. The relevant facts appearing from the available record are as follows. ( 2 ) THE petitioner was a teacher in the Government Girls Intermediate College, Phaphamau, District Allahabad. She was transferred by order dated 18-2-2000 to the Government Girls Higher Secondary School, Tharwai, District Pratapgarh. She filed a writ petition being Writ Petition No. 31852 of 2000 in which this Court passed the following interim order:"as an interim measure, it is provided that in case the impugned order dated 18-7-2000 (Annexure 3 to the petition) has not already been given effect to in accordance with law,the operation thereof shall remain stayed till further orders by this Court. It is also provided that pendency in the matter will not preclude the authorities for (from ?) reconsidering the matter in the event of representation being filed on behalf of the petitioner. Dated 27-2-2000" ( 3 ) BEFORE the above order was passed one Smt. Suman Rani Yadav, who had been posted by transfer in place of the petitioner, had joined her new posting. ( 4 ) THE case of the petitioner was that she had not handed over charge of her previous posting at Phaphamau, Allahabad and, therefore, it could not be said that transfer order had been given effect to in accordance with law. When the matter came up again before the Court another order dated 11-10-2000 was passed. The relevant part of which is as follows :"from the material on record it is clear that on the date the order was passed charge was not taken from the petitioner. The same was evident from the letter written by the Principal dated 17-8-2000 filed as Annexure R. A. 15 to the rejoinder affidavit. In view of above noted facts, the order dated 27-7-2000 is hereby confirmed. It is further directed that petitioner shall be permitted to continue to hold post of Assistant Teacher at Government Girls College, Phaphamau, Allahabad. The same was evident from the letter written by the Principal dated 17-8-2000 filed as Annexure R. A. 15 to the rejoinder affidavit. In view of above noted facts, the order dated 27-7-2000 is hereby confirmed. It is further directed that petitioner shall be permitted to continue to hold post of Assistant Teacher at Government Girls College, Phaphamau, Allahabad. " ( 5 ) AT this point it may be relevant to refer to the said letter of the Principal dated 17-8-2000 which has been referred in and is the basis of the above interim order dated 11-10-2000. A copy of it is filed as Annexure 3 to this contempt petition. The letter has been written by the Principal of the College at Phaphamau to the Principal of the College at Tharwai, saying that charge has not been handed over by the petitioner, Smt. Shakuntala and, therefore, she should be required to hand over the charge so that her Last Pay Certificate (LPC) and Service Book can be forwarded by the Phaphamau College to the Tharai College. ( 6 ) THE letter would indicate, that the petitioner was not available for her duty at the college at Phaphamau and had left without handing over charge. Prima facie such conduct on part of any employee would border on misconduct. However no final opinion can be expressed on this point as the circumstances in which the petitioner left the Phaphamau College without handing over charge are not on record in this contempt petition. ( 7 ) IT is well settled that no party can be permitted to take advantage of his own wrong. Thus in absence of good explanation of the aforesaid unsual conduct, the petitioner does not appear to be entitled to take advantage of the words in accordance with law used in the interim order dated 27-7-2000. However, because the learned Single Judge had passed the interim order dated 11-10-2000, therefore, in this contempt petition the Court passed a detailed order 22-2-2000 which is reproduced below :"the petitioner was transferred and in her place one Smt. Suman Rani Yadav was posted as result of transfer. The case of the respondents is that Smt. Suman Rani Yadav joined in place of the petitioner on 21-7-2000. The case of the respondents is that Smt. Suman Rani Yadav joined in place of the petitioner on 21-7-2000. On the other hand the case of the petitioner is that although Smt. Suman Rani Yadav has joined as alleged by respondents on 21-7-2000, the petitioner was not relieved from that post of Assistant Teacher in accordance with law, as the procedure for handing over of charge was not complied with. On 27-7-2000 an interim order was passed that transfer order of the petitioner dated 18-7-2000 would remain stayed if it had not been given effect to "in accordance with law". The contention of the petitioner is that because the petitioner was not relieved "in accordance with law", therefore, transfer order should be deemed to be stayed. Further, after exchange of affidavits on 11-10-2000 this Court passed an interim order in the following words :"from the material on record, it is clear that on the date the order was passed (i. e. 27-2-2000) charge was not taken from the petitioner. The same was evident from the letter written by Principal dated 17-8-2000 filed as Annexure R. A. 15 to the rejoinder affidavit. "in view of this it has been submitted by the learned counsel for the petitioner that finding recorded in the interim order indicates that stay order dated 27-2-2000 would continue to be operative as the petitioner had not been relieved. The further submission on the part of the petitioner is based upon the direction issued on 11-10-2000 which says that it is further directed that the petitioner shall be permitted to continue to hold the post of Assistant Teacher at Government Girls Inter College, Phaphamau, Allahabad. It has been stated on behalf of the peti- tioner that despite clear cut direction the petitioner is not being permitted to continue on the post of Assistant Teacher at Phaphamau, Allahabad. The defence in the counter affidavit is that the instruction has been sought from the higher authority, Joint Director, by the Principal of the College as to what should be done in the matter. The defence in the counter affidavit is that the instruction has been sought from the higher authority, Joint Director, by the Principal of the College as to what should be done in the matter. Whether this defence set up in the counter affidavit by Principal is sufficient or not has to be examined in the light of the facts that it is a Government College, that it is not possible for the Principal to make payment to two persons on the same post, that this Court has not directed even in the interim order dated 11-10-2000 as to what should be done about the person who has already joined on the post of the petitioner and that the Principal does not have the power to transfer or send away Smt. Suman Rani Yadav to accommodate the petitioner. This power lies only with higher authorities. Having regard to these facts I am of the opinion that the Joint Director of Education to whom matter has been referred should be required to submit a reply to this contempt petition as to why he has not issued necessary instructions or clarification sought by the petitioner (principal ?) to enable compliance of the order of this Court. In the circumstances issue notice to the opposite party Nos. 2 and 3 to file their reply to this contempt petition as well as the facts pointed out above in this order. Notices will be made returnable within a month. Steps will be taken within three days. Copy of this order will be sent along with notice. Personal appearance will not be necessary. " ( 8 ) PURSUANT to the above order dated 22-2-2000, an order has been passed by the Joint Director of Education on 29-3-2000 transferring the petitioner back to the Government Girls Inter College, Phaphamau, Allahabad from Tharwai and transferring Smt. Suman Rani Yadav from Phaphamau to Katra. ( 9 ) WHEN the Court is exercising contempt jurisdiction, the alleged non-compliance of the orders of Court cannot be viewed in theoretical terms. The Court must examine as to whether it was legally possible for the opposite parties to comply with the order because otherwise non-compliance cannot be said to be "wilful". ( 9 ) WHEN the Court is exercising contempt jurisdiction, the alleged non-compliance of the orders of Court cannot be viewed in theoretical terms. The Court must examine as to whether it was legally possible for the opposite parties to comply with the order because otherwise non-compliance cannot be said to be "wilful". It has already been observed in the detailed order dated 22-2-2001 (quoted above) that it was legally not permissible for the Principal without necessary clarification or direction from the higher authorities either to make payment, from Government funds, to two persons, i. e. the petitioner, as well as Smt. Suman Rani Yadav on the same post, nor it was possible for the Principal to transfer Smt. Suman Rani Yadav who had already joined. The necessary clarification or direction from the higher authorities was sought by the Principal. In the normal course of things the authorities in Government require a reasonable amount of time to consider the various aspects of the matter and to pass appropriate orders. It would be unpractical to expect the authorities to act immediately in such matters, as there are number of factors which have to be considered and taken into account and which may not have been placed before the Court when the order was passed. Therefore, a slight amount of delay by authorities in complying with the order should not be viewed in a very rigid manner by punishing the officers. ( 10 ) IN this case there has been substantial compliance of this Courts order although there was some delay in compliance. Learned counsel representing the petitioner has raised by grievance that petitioner should not have been re-transferred from Tharwai to Phaphamau, Allahabad but should have been treated to be continued at Phaphamau because of the stay order and she should have been paid salary for the entire period from Phaphamau. This grievance apart being hyper-technical also does not take into consideration the fact that two persons cannot be paid salary on one post. Smt. Suman Rani Yadav must have been paid her salary on the post at Phaphamau. It is not possible to make second payment of salary of the same post again to the petitioner and, therefore, I am unable to accept the argument of the petitioner. Smt. Suman Rani Yadav must have been paid her salary on the post at Phaphamau. It is not possible to make second payment of salary of the same post again to the petitioner and, therefore, I am unable to accept the argument of the petitioner. ( 11 ) THE petitioner has also submitted in this contempt petition a mandamus should be issued to the respondents to make payment of salary to the petitioner. He has relied upon a decision of the Supreme Court in the case of Vidhya Dhar Sharma v. G. B. Patnaik reported in JT 2001 (4) SC 405 : (2001 0 AIR (SCW) 2464) (paragraph 6 ). This decision contains a direction given by the Supreme Court and the decision does not deal with the question whether the High Court can issue such direction in exercise of its Contempt Jurisdiction. The other decision relied upon by the petitioner is the case of Mohd. Idris v. Rustam Jehangir reported in AIR 1984 SC 1826 (paragraph 4) which approves that it is open to the High Court in exercise of Contempt Jursidiction to issue direction to close the breach, i. . e. to remedy the contempt. ( 12 ) HOWEVER, in view of the fact that the writ petition of the petitioner is already pending where at the final hearing it is open to the petitioner to obtain necessary directions. Findings recorded while passing of the interim order are not final and binding at the final hearing. In the pending writ petition it will be required to be adjudicated finally where the transfer order dated 18-7-2000 had been given effect to prior to passing of the interim order dated 27-2-2000. It would also require to be examined as to what would be meaning and effect (in the facts of this case) of the words "in accordance with law" as used in the interim order dated 27-7-2000, and whether the petitioner, who prima facie walked away in violation of law without handing over charge, can be permitted in the equity (writ) jurisdiction to say that she was not relieved "in accordance with law". ( 13 ) BECAUSE the prima facie findings, recorded for passing interim orders are neither res judicata, nor necessarily binding at the stage of final hearing, it may be possible that at the final hearing of the writ petition the Writ Bench may take a different view than the one taken in the interim order dated 11-10-2000, or the view I may take in this contempt petition if I go into these questions, therefore, I am not inclined to adjudicate upon the same questions which are sub-judice in the pending writ petition, and thereby risk the embarrassment of a contradictory finding on the same issues between the same parties by two different Benches. ( 14 ) UNDER the circumstances, I am not inclined to issue any direction by recording my final findings on the aforesaid questions involved in this matter. The observations made above are only, prima facie, observations for deciding this contempt petition, and should not be interpreted to mean final findings at the time of final adjudication of the writ petition. ( 15 ) IN the circumstances I am of the opinion that no further action is called for in this contempt petition. The contempt petition is accordingly, dismissed. Notices issued herein are discharged. Petition dismissed. .