Research › Search › Judgment

Gauhati High Court · body

2003 DIGILAW 3 (GAU)

R. D. Srivastava v. Suren Panging

2003-01-02

P.G.AGARWAL, P.P.NAOLEKAR

body2003
JUDGMENT P.P. Naolekar, C.J. 1. This is an appeal filed against the order dated 30.5.2002 passed by the learned Single Judge in Contempt Case No. 31(AP)/2002, where under he found the Appellant to have committed the contempt of Court having acted wilfully in disobedience of the order dated 20.12.2000 passed in W.P. (C) No. 7036/2000. 2. The brief facts relevant for the purpose of this appeal are-that a writ petition was filed by one Mr. S. Panging challenging the order of promotion issued in favour of Respondent No. 4 Ms. N.P. Maungh, to the post of Section Officer (Vigilance Branch) of the Arunachal Pradesh Secretariat. This Court while issuing notice of motion on the aforesaid writ petition, in the interim, directed that the promotion of Respondent No. 4 to the post of Section Officer Group (B) Gazetted shall remain stayed. Opportunity was given to the Respondents to move for modification, alteration or cancellation of this order. As per the Court's order the Government by its order dated 2.1.2001 kept the order of promotion of Respondent No. 4 in abeyance. 3. The Government, thereafter, has filed an application for vacating the stay order on 30.7.01, which is numbered as Misc. Case No. 118(AP)/01. It appears that advice of the Government Advocate was sought for and by communication dated 21.3.2002 the Government Advocate informed the Secretary (General Administration), Government of Arunachal Pradesh that by virtue of operation of Article 226(3) of the Constitution, the interim order so passed stands vacated automatically as no order has been issued on the application for vacating stay within two weeks. In pursuance of the advice given by the Government Advocate the order dated 15.5.2002 was issued whereby the order of promotion of Respondent No. 4 was given effect to and she was directed to continue in the post of Section Officer (Vigilance Branch). This order gave rise to the contempt proceedings which have been taken on the application moved by the original writ Petitioner and passing of the impugned order by the learned Single Judge. Later on, the same Government Advocate sent yet Anr. communication dated 28.5.2002 to the Secretary (General Administration) informing that the letter sent by him giving advice of automatic vacation of stay order was given inadvertently, in fact, by moving the application for vacating the interim order of stay would not be treated as the stay order automatically stood vacated. Later on, the same Government Advocate sent yet Anr. communication dated 28.5.2002 to the Secretary (General Administration) informing that the letter sent by him giving advice of automatic vacation of stay order was given inadvertently, in fact, by moving the application for vacating the interim order of stay would not be treated as the stay order automatically stood vacated. On the same day, after receiving the communication from the Government Advocate the order passed on 15.5.2002 has been revoked by the Appellant by issuing a fresh order. 4. Under Article 226(3) of the Constitution any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made, without furnishing to such party copies of such petition and all documents in support of the plea for such interim order and giving such party an opportunity of being heard, can move an application to the High Court for vacation of such order. When such an application is moved a copy of the same has to be served on the party who has obtained the order of stay or injunction or on the counsel of such party and that the matter has to be heard within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is earlier. When the steps are taken by moving an application under Article 226(3) of the Constitution for vacating the stay order, if the application is not disposed of within two weeks, it is the mandate of law that the interim order so passed shall stand vacated automatically. The effect of vacation would be as if there is no order of stay in existence passed by the Court, after expiry of two weeks. 5. It appears that the Government Advocate gave advice to the Secretary (General Administration) of vacating the stay as he was of the view that the application has not been considered within the period of two weeks and, therefore, the provisions of Article 226(3) of the Constitution shall apply. 5. It appears that the Government Advocate gave advice to the Secretary (General Administration) of vacating the stay as he was of the view that the application has not been considered within the period of two weeks and, therefore, the provisions of Article 226(3) of the Constitution shall apply. Later on he came to know about the fact that in fact the application has not been moved exercising the right under Article 226(3) of the Constitution he has immediately sent a communication to that effect to the Government intimating that the previous advice given by him on the stay order was not correct. It appears that the day on which the advice was received by the Secretary (General Administration), he passed a subsequent order withdrawing the order issued earlier on the advice of the Government Advocate. 6. The fact reveals that immediately after the stay order has been passed by this Court the Government has passed an order keeping the order of promotion of Respondent No. 4 in abeyance. Later on, the Appellant has passed an order giving promotion to Respondent No. 4 in pursuance of the earlier communication/advice received by him from the Government Advocate, but later on after receipt of the subsequent communication from the Government Advocate he issued Anr. order withdrawing the order issued earlier. When the order was issued on 15.5.2002 he has been informed about the effect of the stay order on the application of the provisions of Article 226(3) of the Constitution by the Government Advocate. The aforesaid fact reveals that the act done by the Appellant was not deliberate to malign the Court's power and jurisdiction or to bring any disrepute to the Court. The bona-fide act on the part of the Appellant cannot be said to be with a purpose to lower down the prestige and dignity of the Court. The action does not indicate that it has been taken by the Appellant with a deliberate motive and not to follow the orders of the Court so as to show his authority in the Department. It is not every act of not following the orders of the Court can be termed as a contempt of Court it is the act which tends to lower down the Courts dignity and prestige and the rule of law in the eye of the general public can be termed as contempt of Court. It is not every act of not following the orders of the Court can be termed as a contempt of Court it is the act which tends to lower down the Courts dignity and prestige and the rule of law in the eye of the general public can be termed as contempt of Court. The Courts' power to punish for contempt is essential to enable the Courts to administer justice according to law in regular, orderly and effective manner and to uphold the majesty of law and prevent interference in due administration of justice. The power so vested in the Court has to be exercised sparingly and with caution when the Courts feel that the act complained of adversely affected administration of justice or which tends to subvert its course or tends to shake public confidence in judicial functioning or when the act complained affects the majesty of law or dignity of Courts. The distinction has to be drawn between errors of judgment and deliberated action or inaction which tends to lower the prestige of the Court. 7. In the present case it does not appear to us that the conduct of the Appellant was a deliberate act, which could be said to be an act on his part to lower the prestige and dignity of the Court, More so, the Appellant has tendered unqualified apology to the Court, which in our view deserves acceptance. 8. In view of the aforesaid, we do not find the Appellant guilty of committing contempt of the Court or that he was wilfully violated the order passed by this Court on 20.12.2000, as such, the impugned order dated 30.5.2002 passed by the learned Single Judge is set aside. The appeal shall stand disposed of.