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2007 DIGILAW 141 (JK)

Firdous Ahmad Shiekh v. Gopal Sharma

2007-08-06

J.P.SINGH

body2007
1. Applicants have filed this application under Section 94 of the Constitution of Jammu and Kashmir, seeking initiation of contempt proceedings against the respondents for willful disobedience of final judgment and order of this Court made in Civil Second Appeal no. 126 of 1998. 2. The applicants are stated to have filed a suit for declaration to the effect that Discharge orders bearing no. 148 to 159 of 1996 dated 15.3.1996 were illegal and bad in law; And that they were to be treated in service and paid pay and allowances, to which they would have been entitled but for the issuance of discharge orders. The applicants have sought a mandatory injunction too against the respondents, seeking release of salary and other emoluments, admissible to them under rules. 3. Suit of the applicants was decreed by learned Sub Judge (Judge Small Causes) Srinagar. Appeals against the decree of Sub Judge too, as stated by the applicants, have been dismissed by the First Additional District Judge, Srinagar. It is submitted by the applicants that Civil Second Appeal preferred against the decree of First .Additional District judge, Srinagar, was dismissed by this Court on 6th of June. 2003. 4. The applicants say that despite lapse of more than three years, respondents had failed to comply with the decree thereby committing the contempt of this Court. According to the applicants, non-compliance of decree for over a period of three years, would amount to willful disobedience of the judgment and decree dated 11.9.1997 of the trial Court, which was up held by this Court vide decree dated 6th of June, 2003. 5. Respondents have indicated in their statement of facts that they had not done any such thing which may be construed as disobedience of this Courts order of 6th June, 2003. They say that the applicants were reinstated vide APHQ Order No. 103/2003 dated 23rd February, 2003 of the Additional Director General of Police, Armed, J&K, and they had been on the rolls of 1RP 1st Bn, and were getting their dues as well. They, however, say that the applicants were not deputed to undergo BRTC training nor were their salaries released because after their re-instatement a regular departmental enquiry had been ordered against the applicants. They have given various reasons for not paying the arrears of salary and deputing the applicants to undergo BRTC training. 6. They, however, say that the applicants were not deputed to undergo BRTC training nor were their salaries released because after their re-instatement a regular departmental enquiry had been ordered against the applicants. They have given various reasons for not paying the arrears of salary and deputing the applicants to undergo BRTC training. 6. When this matter came up for consideration on 26l" of July, 2007, learned State-counsel questioned the maintainability of the contempt petition, whereas Mr. Jan, learned counsel appearing for the applicants submitted that the application was maintainable in the facts and circumstances demonstrated in the application. Learned counsel referred to Bank of Baroda vs. Sadruddin Husan Daya and ors, reported as AIR 2004 SC 942 to support his submission. 7. I have considered the submissions of learned counsel for the parties and gone through the records. 8. Perusal of the judgment of this Court recorded in Civil Second Appeal no. 126 of 1998 on 6lh June 2003, indicates that the First Appellate Court had modified the decree of the trial Court by directing that applicants-decree-holders would make an application to the respondents for their back wages, which application would be considered on compassionate grounds and according to the rules. The appeal preferred by the respondents against the decree of First Additional District Judge, was dismissed by this Court, meaning thereby that the decree passed by the First Additional District Judge, Srinagar, had to hold the field. 9. From the above conspectus of (acts, it thus appears that the applicants had not disclosed in their application, cither about their reinstatement or about that portion of the decree of the First Appellate Court, whereby they were required to file a representation with the respondents for seeking their back wages. 10. The case set up by the respondents in the statement of facts, that, during the pendancy of the departmental enquiry, the applicants were not entitled to the promotional avenues and back wages, is a plea which needs consideration on its merits, with due regard to the service rules and as to entitlement or otherwise of the applicants to back wages and other benefits, which they had claimed from the respondents. This was so because the First Appellate Court, in its decree, had left it open to the respondents to take a decision in this regard on compassionate grounds, but in accordance with rules. 11. This was so because the First Appellate Court, in its decree, had left it open to the respondents to take a decision in this regard on compassionate grounds, but in accordance with rules. 11. The action of the respondents, thus, cannot be termed as their willful disobedience of the orders of this Court. 12. That apart, the relief sought by the applicants in the present application is, in effect and in essence, a relief of execution of the decree, which the applicants had obtained against the respondents. Such a relief may conveniently be had by the applicants by putting the decree into execution, as provided under Order 21 of the Code of Civil Procedure. Jurisdiction of this Court to punish for its own contempt as also the contempt of the subordinate Courts, cannot, in the facts and circumstances of the present case, be exercised so as to consider all those questions which the executing Court may be required to do while considering the executability of the decree passed by the Civil Court. The decrees passed b\ the First .Appellate Court as also by this Court, have become the decree of the trial Court in terms of Section 37 of the Code of Civil Procedure and was required to be executed by that Court in terms of Section 38 of the Code. 13. It is true that remedy provided for execution of a decree may not come in the way of this Court in exercising its jurisdiction under Section 94 of the Constitution of Jammu and Kashmir, though in appropriate cases, but for exercise of such jurisdiction, a strong case, evidencing willful disobedience of the Court orders and decrees, has to be made out. In those cases where contentious issues are raised, or are likely to arise in regard to the execution or otherwise of the decree sought to be put to execution, exercise of jurisdiction by this Court under Section 94 of the Constitution of Jammu and Kashmir may not be warranted. 14. Looking to the stand taken by the respondents in their statement of facts, it cannot be said that contentious issues regarding the executability or otherwise of that portion of the decree, which the applicants say, still remains to the executed; do not arise in the present case. 15. 14. Looking to the stand taken by the respondents in their statement of facts, it cannot be said that contentious issues regarding the executability or otherwise of that portion of the decree, which the applicants say, still remains to the executed; do not arise in the present case. 15. Even otherwise, under the Jammu and Kashmir Contempt of Courts Act, 1997, no Court may initiate any proceedings for contempt whether on its own motion or otherwise alter the expiry of a period of one year from the date the contempt is alleged to have been committed. 16. The applicants say that the respondents had not executed the decree despite lapse of more than three years. They do not plead any such facts in the application on the basis whereof it may be said that the alleged contempt, if any, had been committed within a period of one year before filing of their application. 17. In view of the facts and circumstances mentioned herein above, I am of the view that the case of the applicants is not such where this Court may, in view of all what has been said in the preceding paragraphs, exercise its jurisdiction under Section 94 of the Constitution of Jammu and Kashmir. 18. This petition is therefore, not maintainable. It is accordingly dismissed. Nothing said in this judgment shall, however, come in the Way of the applicants to move the competent Court of jurisdiction to seek execution of the decree, if they were otherwise entitled to seek its execution.