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2008 DIGILAW 652 (ALL)

AKHTAR HUSSAIN v. A K VASHISHTHA

2008-03-19

TARUN AGARWALA

body2008
TARUN AGARWALA, J. ( 1 ) HEARD Sri Sharad Kumar Srivastava, the learned counsel for the applicant and Sri Vijay dixit, the learned counsel holding brief of Sri sandeep Dixit, the learned counsel for the opposite parties. ( 2 ) THE claim application of the applicant was allowed by the Public Service Tribunal by an order dated March 24, 1994, by which the tribunal held that the applicant was entitled for appointment on the post of Junior Telephone tester and that the department was liable to pay salary to him w. e. f. April 25, 1989 along with interest @ 12% per annum. The Tribunal also imposed a cost of Rs. 200/ -. It transpires that the department filed a writ petition before the Court which was dismissed by a judgment dated october 19, 1994. The Court while affirming the order of the learned Tribunal also imposed a sum of Rs. 5000/- as cost upon the department and further directed the opposite party to pay interest @ 18% per annum instead of @ 12% per annum as imposed by the Tribunal, in the event the amount was not paid within two months from the date of the order. It further transpires that the respondents paid a sum of Rs. 1,51,028. 59 by cheque on December 6, 1994 which was accepted by the applicant under protest. By another cheque dated February 6, 1995 a sum of Rs. 40,317. 52 was also paid to the applicant towards the alleged interest for the period April 24, 1989 to September 8, 1994 which is also alleged to have been accepted by the applicant under protest. Since the applicant contended that the entire amount was not paid, he represented the authorities to release the remaining amount as per the direction of the tribunal. Since the amount was not paid in full as per the contention of the applicant, the applicant invoked the contempt jurisdiction of the High Court under Section 12 of the contempt of Courts Act. ( 3 ) A short counter affidavit by the then executive engineer, Subhash Chandra, was filed disclosing that a sum of Rs. 1,51,028. 59 was paid to the applicant by a cheque on december 6, 1994 and Another cheque of Rs. 5000/- towards cost was also paid on December 6, 1994 and further on February 3, 1995 two cheques towards interest for Rs. 40,317. 1,51,028. 59 was paid to the applicant by a cheque on december 6, 1994 and Another cheque of Rs. 5000/- towards cost was also paid on December 6, 1994 and further on February 3, 1995 two cheques towards interest for Rs. 40,317. 52 and another for Rs. 200/- towards cost was paid. The said affidavit also disclosed that the applicant had concealed material facts and that he had filed a contempt application under Section 5-A of the U. P. Public Services (Tribunal) Act, 1976 before the U. P. State Public Service Tribunal for contempt of the order of the Tribunal against the opposite parties, in which proceedings were initiated and by an order dated May 6, 1996, the tribunal found that the order of the Tribunal had been complied with in toto, and therefore, discharged the opposite parties from the contempt proceedings. The opposite parties consequently contended that the present contempt proceedings initiated under Section 12 of the Contempt of Courts Act was an abuse of the process of Court and should be dismissed with cost. ( 4 ) NOTWITHSTANDING the aforesaid counter affidavit, being filed before the Court, it transpires that, as and when, the officers of the power Corporation changed, impleadment applications were filed by the applicant and, in this manner, various Executive Engineers and chairman of the U. P. Power Corporation were impleaded as opposite parties in this contempt proceedings. All these officers filed their affidavits, in which, the same facts was reiterated. Rejoinder affidavits to these affidavits have been filed in which the applicant admitted that he had resorted to contempt proceedings before the Tribunal under Section 5-A of the Act which was dismissed in the year 1996 and which became final inter se between the parties. ( 5 ) AFTER hearing the parties at some length, this Court is of the opinion that, the applicant has misused the process of Court and has unnecessarily dragged the officers of the Power corporation for no rhyme or reason. The order of the Tribunal was affirmed by the High Court subject to minor alterations, namely, payment of cost and quantum of interest. The record indicates that the applicant had initiated contempt proceedings before the Tribunal in the year 1994 himself. The order of the Tribunal was affirmed by the High Court subject to minor alterations, namely, payment of cost and quantum of interest. The record indicates that the applicant had initiated contempt proceedings before the Tribunal in the year 1994 himself. Once the contempt proceedings was initiated by the applicant before the Tribunal, he could not initiate any further contempt proceedings for the same cause before the High Court under Section 12 of the Contempt of Courts Act. The present contempt application was filed in the year 1995 much after the contempt proceedings were initiated by the applicant before the Tribunal. Further, this Court finds from the record that the entire amount was paid to the applicant before filing of the contempt proceedings. Once the contempt application was initiated by the applicant before the Tribunal, the present contempt application was not maintainable, and therefore, in my view, this amounts to a misuse of the process of the Court. The fact that the applicant had filed a contempt application before the Tribunal, was conveniently concealed and was not stated in the contempt petition. ( 6 ) IN my opinion, it was not a bona fide mistake as contended by the learned counsel for the applicant. Rather it was a deliberate exercise made the applicant in not bringing this fact to the knowledge of the Court and deliberately did not disclose the relevant fact. Further, when the contempt proceedings were dismissed by the tribunal in the year 1996, the applicant pursued this matter unnecessarily and filed an impleadment application to haul up the authorities before this Court for the alleged contempt which did not exist. ( 7 ) IN my opinion, the fact that the Tribunal had categorically stated that complete compliance of the order of the Tribunal had been made, which order had become final and was not challenged before a higher forum, the attempt on the part of the applicant, to persist with the contempt proceedings, was clearly an abuse of the process of the Court. ( 8 ) CONSEQUENTLY, this Court holds that in view of the judgment of the Tribunal holding that the order of the Tribunal had been complied in toto and in view of the fact that the payment of interest and cost had also been paid, this court does not find any reason to continue any further with the contempt proceeding. ( 8 ) CONSEQUENTLY, this Court holds that in view of the judgment of the Tribunal holding that the order of the Tribunal had been complied in toto and in view of the fact that the payment of interest and cost had also been paid, this court does not find any reason to continue any further with the contempt proceeding. In the opinion of the Court, the order of the Tribunal as affirmed by the High Court, has been complied by the opposite parties. ( 9 ) SINCE the applicant has misused and the process of the Court and unnecessarily dragged the opposite parties in the Court for the last 12 years, this Court dismisses the contempt petition and imposes a cost of Rs. 5,000/- to be paid by the applicant to the opposite parties within four weeks from today. In the event the cost is not paid, it would be open to the opposite party to move an application before the collector for recovery of the cost. If such an application is made, the Collector would recover the cost as arrears of land revenue. .