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2004 DIGILAW 384 (PAT)

Anup Kumar Pal v. Prof. Amarnath Singh

2004-04-06

R.S.GARG

body2004
Judgment 1. Heard Shri Taranath Jha, learned counsel for the petitioner, Shri Ajay Tripathi, learned counsel for the respondent no.1 and Shri Binod Kumar Kanth, learned counsel for the respondent no. 3. The respondent no. 1 has filed an additional show cause. The respondent no. 3 has also filed a show cause. The parties are heard at length. The parties are satisfied with the hearing afforded to them. 2. The present contempt application under Section 12 read with Article 215 of the Constitution of India has been filed by one Anup Kumar Pal, a class III employee against the respondents as according to the petitioner the respondents have wilfully and knowingly violated the orders passed by this Court in C.W.J.C. No. 6579 of 1998 (Anup Kumar Pal vs. The B.N. Mandal University & Ors.) on 27.9.1999 and order dated 10.8.2000 passed in Civil Review No. 312 of 1999 (Anup Kumar Pal vs. The B.N. Mandal University & Ors.). 3. The facts leading to this contempt application are that the petitioner was functioning as Counter Clerk, a class III post in M.J.M. Mahila College, Katihar. Despite his working, salary of the period between February, 1998 to July, 1998 was not paid to him. The petitioner submitted before the High Court that he was appointed on daily wages basis on 1st May, 1983 and was paid his wages in accordance with his appointment. The petitioner also submitted that he was given regular appointment against sanctioned post of Counter Clerk vide memo no. 3637 dated 17th August, 1992 by Registrar of the University. His service book was opened on 14th May, 1997 and he was paid regular salary till January, 1998. The Principal of the College vide his letter dated 16th March, 1998 informed the petitioner that no deduction was made earlier against the provident fund account and group insurance scheme and for the said reason the salary has been withheld. The petitioner was required to submit the details. The petitioner submitted before this Court that his name had already been forwarded by the Incharge Principal of the College to the University with a estimated budget on 2nd April, 1998 and it was to the knowledge of the College that the petitioner was functioning, evidence had been cited in support of his claim that he was still working in the College. The University took the plea that the appointment of the petitioner was made by the then principal of the College in violation of Section 35 Bihar State Universities Act, 1976. According to them there was no post of Counter Clerk created or vacant in the College. It was also submitted that regularisation order was issued by the University on submission of wrong statement of facts by the then Principal relating to sanction of such post. The State also submitted that in terms with resolution dated 10th May, 1991 the petitioner was not entitled for regularisation, no post having been sanctioned and as the said resolution was subsequently withdrawn by the State of Bihar. 4. This Court after hearing the learned counsel for the parties and after taking into consideration the facts and the legal position observed that the post of Counter Clerk was created in terms with the staffing pattern for each of the constituent College. This Court also observed that in absence of specific order by the state it could not be held that no such post was existing. The Court observed that the authority should treat such post as created under staffing pattern in terms with Full Bench decision in case of Braj Kishore Singh vs. State of Bihar, 1997 (1) PLJR 509 . The writ application was allowed and the matter was remitted to the respondents. They were required to take into consideration as to whether the post (Counter Clerk) against which the petitioner was working stood sanctioned/ deemed to be sanctioned in terms with staffing pattern or not and if such post stood sanctioned/deemed to be sanctioned in terms with staffing pattern and the petitioner comes within the zone of such post/ working against such post the authorities would be liable to pay salary to the petitioner for the period he actually performed the duties. The other direction issued by the court was that a decision in that respect be taken and communicated to the petitioner within two months from the date of receipt/production of copy of the said order, in case of decision against the petitioner reasons be given and communicated to him. On such decision, admitted dues if any be paid within one month from the date of such decision. 5. It appears that after filing of the said writ application an order of termination was issued against the petitioner. On such decision, admitted dues if any be paid within one month from the date of such decision. 5. It appears that after filing of the said writ application an order of termination was issued against the petitioner. As the matter was being remitted to the respondents, the petitioner filed Civil Review No. 312 of 1999; the same came up for hearing and was finally disposed of by this Court on 10.8.2000. This Court observed that the University was trying to justify the orders on the ground that the initial appointment of the petitioner was made by the Principal of the College, who had no jurisdiction but the Court, however, further observed that the counsel for the University accepted that the authorities failed to take into consideration the order of appointment as was issued in 1992 by the Vice Chancellor of the University. In the said background and the observations contained in the said order this Court observed that the question relating to legality and propriety of appointment of petitioner was not decided in proper manner and the Court further observed that the impugned order (9.1.1999) was passed in violation of Rules of Natural Justice. The Court set aside the impugned order of termination dated 9.1.1999 with a direction to the respondent/opposite parties to decide the" issue after notice and hearing the petitioner. (Emphasis Supplied). This Court also observed that the order passed in the Civil Review would form part of the order dated 27th September, 1999 passed in C.W.J.C. No. 6579 of 1998 and the order passed in the C.W.J.C. will stand modified to the extent. 6. Armed with the said two orders the petitioner made an application to the Incharge Principal on 22.8.2000. In the said application it was categorically stated that in accordance with the directions of the High Court he be allowed to join. Copy of the High Court orders were also submitted. The then Principal, Smt. Asha Lata made an endorsement on the left side of the application as "seen". She did not say anything further that the petitioner would be allowed to join, would be allowed to resume his duties and any further action is required to be taken. Copy of the High Court orders were also submitted. The then Principal, Smt. Asha Lata made an endorsement on the left side of the application as "seen". She did not say anything further that the petitioner would be allowed to join, would be allowed to resume his duties and any further action is required to be taken. On 4.9.2000 (Annexure-4) the said Incharge Principal, Smt. Asha Lata wrote to the Vice Chancellor, B.N. Mandal University that in accordance with the directions issued by the High Court proper orders into the joining of the petitioner be issued. She also made a request to the University that as no Counter Clerk was posted in the College difficulties were faced. Even after receipt of the letter dated 4.9.2000 no orders were issued by the University, no orders were issued by the College or the Principal in favour of the petitioner that he is allowed to join and would be allowed to work in the College. 7. The delay in disposal is a routine in this State, be it the State Government, the College, the University or any other Department, but that does not mean that everybody can take the High Court for granted. When the High Court issues an order, fixes a time limit then the person against whom a direction is issued is obliged to observe the directions. None, howsoever high he is or holding a high office is above law. When the Highest Court in a province issues a direction then all concerned are obliged to observe that order, observe it religiously and meticulously. They are obliged to observe the orders and are not required to show any unscrupulousness. 8. The petitioner being aggrieved by the conduct of the College authorities so also of the Vice Chancellor came to this Court on 8.8.2001. A copy of this application was supplied to Shri S.N. Roy, standing counsel for B.N. Mandal University on 8.8.2001 itself. Unfortunately despite service of the said copy on the counsel no steps were taken to purge the contempt nor any action was taken by the University. On 13.2.2004 the matter was listed before the Court pointing out certain defects; this Court directed that the defects be removed. 9. On 25.2.2004 when the matter again came up before this Court, this Court required the respondent no. 1 i.e. the Vice Chancellor to submit his personal affidavit in the matter. On 13.2.2004 the matter was listed before the Court pointing out certain defects; this Court directed that the defects be removed. 9. On 25.2.2004 when the matter again came up before this Court, this Court required the respondent no. 1 i.e. the Vice Chancellor to submit his personal affidavit in the matter. He was required to inform this Court that despite directions of this Court why the petitioner was not allowed to resume his duties or salary was not paid and why the representation was not decided. The matter was directed to-be placed on 22nd March, 2004. 10. The respondent no. 1 filed his affidavit dated 20th March, 2004 in the Court on 22nd March, 2004. Along with the said show cause/affidavit letter dated 6.8.2003 (Annexure-B) was appended. In the said letter the Vice Chancellor discussed the background in which the petitioner was appointed and took into consideration the staffing pattern and the manner in which the petitioner was appointed and then observed that the list of the employees was submitted by the then Principal on 17.12.1992 and as the name of the petitioner was missing in the said list, the petitioners appointment was illegal. On basis of his findings he ordered that the letter No. GS-218-21/99 dated 9.1.1999 is maintained and the petitioner was informed that he could not be reinstated. However, he gave a notice to the petitioner to submit his show cause or make his representation within 15 days from the date of receipt of the said letter dated 6.8.2003. 11. When the matter came up before this Court on 22.3.2004 it was brought to the notice of this Court that order dated 9.1.1999 which was quashed by this Court was being maintained and upheld by the Vice Chancellor. 12. This Court directed the Vice Chancellor and the Principal of M.J.M. Mahila College, Katihar to appear in person. In accordance with the directions of this Court they are present in person. The respondent no. 1 has filed his additional show cause while the Principal of the College has filed the show cause. 12. This Court directed the Vice Chancellor and the Principal of M.J.M. Mahila College, Katihar to appear in person. In accordance with the directions of this Court they are present in person. The respondent no. 1 has filed his additional show cause while the Principal of the College has filed the show cause. This Court by order dated 22.3.2004 required them to file their further show cause and inform this Court as to why the salary for the period from the date of joining till 6.8.2003 was not paid to the petitioner and how could an order which was quashed by the High Court be maintained by the Vice Chancellor. Simultaneously this Court also required them to show cause as to why these two officers be not suitably punished in case they are held guilty of contempt. 13. The respondent no.1 in his additional show cause has submitted that the petitioner had written two letters dated 28.8.2003 and 14.9.2003 against the order of termination dated 6.8.2003, the respondent no. 1 examined the records again and did not find any cogent explanation to review/reverse- the order of termination passed at his level and accordingly issued letter dated 22.3.2004 (Annexure-D). It is also said by the respondent no. 1 that he discovered that the concluding paragraph of order of termination speaks of the earlier order dated 9.1.1999. According to him it was a bonafide mistake on the understanding of the situation therefore the same was suitably modified and accordingly the petitioners date of termination is to be the date of the order contained in Annexure-B i.e. 6.8.2003. He has also tendered unqualified apology for the alleged lapses committed by him. 14. Annexure-D is letter dated 27.3.2004. In the said letter it has been observed that the petitioners letters dated 28.8.2003 and 14.9.2003 were taken up for consideration and the authority was unable to review its earlier order because no positive and clinching evidence was filed in support of the claim. The order says that the representations were rejected and the petitioner was informed that in stead of 9.1.1999 the date of termination be deemed to be 6.8.2003. The order says that the representations were rejected and the petitioner was informed that in stead of 9.1.1999 the date of termination be deemed to be 6.8.2003. I had put a specific question to the learned counsel for the Vice Chancellor that whether before issuing the order dated 6.8.2003 any show cause notice was issued to the petitioner or any hearing was afforded to him, though the counsel wanted to avoid the answer but ultimately conceded to the position that before issuing the order dated 6.8.2003 no notice was given to the petitioner nor any opportunity of hearing was afforded to him. At this juncture I would refer back to the order dated 10.8.2000 passed in Civil Review No. 312 of 1999. By the said order High Court quashed the order dated 9.1.1999 under which the petitioner was terminated and issued a direction to the respondentopposite parties including the Vice Chancellor to decide the issue after notice and hearing the petitioner. It is not the case of the Vice Chancellor that before 6.8.2003 any representation was submitted by the petitioner or any application was filed by him. The facts are open and clear. The facts are that the.petitioner submitted his joining on 22.8.2000 and the then Principal of the College by her letter dated 4.9.2000 requested the Vice Chancellor to allow joining. Beyond that there are no other documents in the records. 15. I would be justified in holding that the respondent Vice Chancellor violated the orders of this Court by not issuing any notice to the petitioner and by not affording any opportunity of hearing to the petitioner. It would also be necessary to see that the order dated 6.8.2003 maintains an order which was quashed by the High Court. Should this Court observe again that even a Vice Chancellor of the University is not entitled or authorised under the law to reaffirm an order which has been quashed by the High Court. This observation made by the respondent Vice Chancellor on face of it, is a contempt of the High Court. The order dated 6.8.2003 records the reasons to arrive to a particular finding, that too without giving any opportunity of hearing or without giving any show cause notice to the petitioner or without-giving an opportunity to him to submit his case before the University. The order dated 6.8.2003 records the reasons to arrive to a particular finding, that too without giving any opportunity of hearing or without giving any show cause notice to the petitioner or without-giving an opportunity to him to submit his case before the University. The tenor and texture of the order dated 6.8.2003 even on the first flush would show that the order of termination was issued and a notice to show cause was issued to him to show cause against the said termination. I am shocked and surprised to see this conduct of the Vice Chancellor. When this Court required him to issue notice and give hearing to the petitioner then under the law he was not authorised to pass an order of termination first and afford a post facto hearing. I must immediately say that the order dated 6.8.2003 is patently illegal and perverse so also violates the orders issued by this Court. The authorities if are aggrieved by the orders of the judicial Tribunals/High Court then they are required to challenge those orders in the higher forum but they can not be allowed to circumvent the orders issued by this Court in a manner as is exhibited in this case. The order dated 6.8.2003 directs that the order dated 9.1.1999 is maintained and the petitioner can not be reinstated in services. That was not in compliance with the orders of the High Court. The High Court after quashing the order dated 9.1.1999 required the Vice Chancellor/authorities to reconsider the entire issue after giving notice and opportunity of hearing to the petitioner. I fail to understand that who gave an authority to the Vice Chancellor to override the orders passed by this Court. The order dated 6.8.2003 simply says that if against the said letters anything is to be said then a representation along with evidence may be submitted in the office of the Vice Chancellor within a period of 15 days. I again fail to understand that how a hearing can be compared with a post facto hearing. The order dated 6.8.2003 simply says that if against the said letters anything is to be said then a representation along with evidence may be submitted in the office of the Vice Chancellor within a period of 15 days. I again fail to understand that how a hearing can be compared with a post facto hearing. When an authority passes an order and gives reasons for the said order and thereafter gives a notice to show cause or tries to hear a party then it is simply making a farce, it is simply creating a scene and is exhibiting a drama, he is not honest, honest to the core and even the honesty would not float on surface. 16. In the show cause letter dated 27.3.2004 has been annexed as Annexure-D. The Registrar of the University informs the petitioner that letters dated 28.8.2003 and 14.9.2003 were taken up for consideration, in support of those letters/application positive and clinching evidence was not produced therefore the said letters/applications were rejected. The petitioner was informed that his date of termination shall be deemed to be 6.8.2003 and not 9.1.1999. I am again at loss to understand that in stead of withdrawing the letter dated 6.8.2003 how could a supplementary order be issued. When the letter dated 6.8.2003 was not meeting the requirements of law and was not observing the true spirit of the orders passed by this Court in C.W.J.C. and review application how could the order dated 6.8.2003 be maintained. The High Court, I will again repeat, directed the Vice Chancellor/authorities to issue a notice and afford an opportunity of hearing before passing a final order. In the present matter the opportunity was afforded to the petitioner after the order was passed and despite knowledge of the contempt application the respondent Vice Chancellor comes out with the letter dated 27.3.2004 saying that the petitioners application stands rejected. If order dated 6.8.2003 was an insult to the orders of the High Court then letter dated 27.3.2004 was adding insult to the injury. I am unable to understand that how an order which is perse illegal and runs contrary to the directions of the High Court could again be maintained by yet another letter. I hold the respondent Vice Chancellor guilty of the contempt of the lawful authority of this Court I have heard his counsel on question of sentence. I am unable to understand that how an order which is perse illegal and runs contrary to the directions of the High Court could again be maintained by yet another letter. I hold the respondent Vice Chancellor guilty of the contempt of the lawful authority of this Court I have heard his counsel on question of sentence. He has submitted that the Vice Chancellor acted bonafide and immediately after realising that he committed a mistake in maintaining the order dated 9.1.1999 he issued yet another order on 27.3.2004 and directed that the termination would be effective from 6.8.2003. When this Court asked Shri Ajay Tripathy, learned counsel for the Vice Chancellor, he submitted that the salary for the period between 9.1.1999 to 6.8.2003 has yet not been paid to the petitioner. Mr. Kanth, learned senior counsel for the Principal submits that the amount is to be sanctioned by the University and transmitted to the accounts of the College only then the dues of the petitioner can be paid to him. 17. This again on the part of the respondent Vice Chancellor is yet another contempt of the lawful authority of this Court. When an order of termination is set aside by the High Court then a person is entitled to be reinstated and he would be entitled to the benefits flowing from the service contract up to the date of his retirement or till another order against his interest is passed. 18. The respondent no. 3 is also present in person. Shri Binod Kumar Kanth, learned senior counsel submits that the then Principal made an application to the University and since after the joining of the respondent no. 3 on 20th April, 2001 she has not seen the face of the petitioner in the College. According to her the petitioner is not discharging any duty in the College nor he is seen on any day even for an hour, nor the petitioner ever contacted her for redressal of his grievances. 19. This statement made in paragraph 6 is nothing but an eye wash. The respondent no. 3 knows personally that the petitioner submitted his joining on 22.8.2000 the then Principal simply made a note "seen" on corner of the application and forwarded the matter to the Vice Chancellor for proper approval. 19. This statement made in paragraph 6 is nothing but an eye wash. The respondent no. 3 knows personally that the petitioner submitted his joining on 22.8.2000 the then Principal simply made a note "seen" on corner of the application and forwarded the matter to the Vice Chancellor for proper approval. It flows from these facts that the petitioners joining letter was simply received, neither the joining was accepted nor he was allowed to work. Under these circumstances when the respondent no. 3 says that she had not seen the petitioner working in the College even for a day or hour she is simply trying to take the Court for a ride. 20. The respondent no.3 has written a letter to the Registrar, B.N. Mandal University. In the said letter she has said, "However, under compliance of the orders dated 10.8.2000 of the Hon ble High Court passed in Civil Review No. 312 of 1999, Shri A.K. Pal submitted his joining on 22.8.2000 in the College Office which was received/ accepted on the same date by the then Professor Incharge, Dr. Asha Lata Sahay." I am really aggrieved by this statement. The Principal must be knowing the difference between the words "received" and "accepted". When a letter is received, it is simply received and when certain orders are passed on it and final orders are passed in favour of the persons submitting then only a letter which was received is said to be accepted. It is not that submission of the letter is acceptance of the same. Even in the Courts hundreds of documents are filed, those are received in the Court or office but those may be accepted or may not be accepted in the evidence or in the Court. When two words are used by an educated Principal then I must presume that she knows the meaning of the words. The records are clear from Annexure-4 appended to the writ application. It is clear that on 4.9.2000 the then Principal requested the Vice Chancellor to allow joining of the petitioner, then on face of that communication it would be a fraud on the part of the respondent no. 3 the present Principal to say that the letter dated 22.8.2000 was accepted. In fact it was simply received and was not accepted because the petitioner was not allowed to join. 21. 3 the present Principal to say that the letter dated 22.8.2000 was accepted. In fact it was simply received and was not accepted because the petitioner was not allowed to join. 21. It is also a created pleading that the petitioner was not seen in the College. When the petitioner was not allowed to join and the Principal of the College was requesting the University to grant permission to join the petitioner then the present Principal could not have said that she had not seen the petitioner working in the College. I fail to understand that on what strength it is said by her that the petitioner was not seen in the College. Who allowed the petitioner to work in the College? Who allowed him to join his duties? Who allowed him to mark his attendance? If there were no orders in his favour either to join, work or mark his attendance then it was not expected of the petitioner to go to the College everyday, knock the doors of the Principal, show his face offer his salutations to the Principal and say "I am here please mark my attendance and allow me to work." 22. The respondent no. 3 unfortunately despite knowledge of these proceedings did not proceed in the matter. It is most unfortunate that after the order of termination was quashed by this Court neither the then Principal nor the present Principal allowed the petitioner to join. The Vice Chancellor despite mandatory directions of this Court did not issue a notice, did not offer an opportunity of hearing and passed the order of termination, maintained an order which was quashed by the High Court and thereafter afforded an opportunity of post facto hearing and again maintained his order. Does the conduct exhibited by these two authorities provide for any latitude in their favour. The attitude of a particular person shows his altitude. In the present matter both these respondents have lowered down to such a limit that the High Court but for awarding punishment against them is left with no other choice. The prayer for accepting apology on behalf of these two persons is rejected. 23. I have heard both the counsel on question of sentence. After holding respondent no. 1, Dr. Amarnath Singh, Vice Chancellor, B.N. Mandal University, Madhepura guilty, I award him two months simple imprisonment. He shall also deposit a fine of Rs. 2000/-. The prayer for accepting apology on behalf of these two persons is rejected. 23. I have heard both the counsel on question of sentence. After holding respondent no. 1, Dr. Amarnath Singh, Vice Chancellor, B.N. Mandal University, Madhepura guilty, I award him two months simple imprisonment. He shall also deposit a fine of Rs. 2000/-. He be taken into custody immediately. For the conduct exhibited by the respondent no. 3 she is also awarded sentence till rising of the Court. She be taken into custody for undergoing the sentence. She shall also deposit a sum of Rs. 2000/- as fine. 24. The conviction of the respondents does not mean that they are not required to observe the orders passed by this Court, they are still obliged to observe the orders passed by this Court in C.W.J.C. and in the Civil Review application, within four months from today. 25. Put up after four months.Order (Later) 26. On conviction of the contemnors and award of the sentence, they were taken into custody by the Court. Each of the contemnors has submitted application for suspension of execution of the sentence. They have submitted that they want to prefer an appeal against the orders passed by this Court, therefore, in accordance with section 19 of the Act the execution of the sentence be kept in abeyance. 27. Both the applications are allowed. On each of the contemnors namely, Dr. Amarnath Singh and Dr. Manju Verma furnishing a personal bond in sum of Rs. 5000/- before the Registrar General, the execution of the sentence shall remain in abeyance for a period of 40 days from today. 28. Let the matter be taken up again on 20th May, 2004.