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2011 DIGILAW 2211 (HP)

Court On Its Own Motion v. N. S. Chaudhary

2011-06-03

KURIAN JOSEPH, V.K.SHARMA

body2011
JUDGMENT : V.K. Sharma, J. These suo moto contempt proceedings arise out of the following order dated 28.09.2007, passed by a Division Bench of this Court in CMP No. 2382 of 2007 (CWP No. 1468 of 2007, State of H.P. and another v. Bishan Lal): "CMP No. 2382 of 2007 When this application was taken up for consideration today, Ms. Dua, learned counsel appearing for the respondent showed us a copy of order No. Rev(ST)SML/Court Matter/2007 endorsed vide No. 2349 dated 4th August, 2007 issued by and under the signatures of petitioner No. 2 whereby, in purported compliance of the judgment passed by the Tribunal on 18th May, 2007, under challenge in this petition, the date of birth of the respondent has already been changed from 27th April, 1950 to 28th June, 1954. As against this, in the present stay application, the petitioners have given an impression to this Court, unmistakably that till the date of filing of the said application in the Court, the judgment under challenge was not implemented. This impression is quite writ large and stares at the Court if one looks at the averments in para 4 of the application. Moreover, in the application there is no mention at all of the implementation of the judgment by issuance of the aforesaid order dated 4th August, 2007 by petitioner No. 2 himself. The application is supported by the affidavit of petitioner No. 2 affirmed on 31st August, 2007. Apparently, therefore, petitioner No. 2 has committed contempt of this Court. Let a Rule be issued against him. He is directed to appear in person on the next date and file his reply to the contempt charge. The respondent may file reply to the stay matter also in six weeks. List on 19th November, 2007." 2. The contemnor (respondent) has filed reply and submitted as under vide para 1 to 3: "1. That the replying respondent throws himself at the mercy of this Hon'ble Court and tenders his unconditional and unqualified apology for not making detailed submissions in CMP No. 2382 of 2007 with regard to the fact that the judgment/orders dated 18.5.2007 passed by the learned H.P. State Administrative Tribunal in OA No. 2241/06, stood complied with by the authorities on 4.8.2007 i.e. prior to the filing of the present petition. However, without advancing any explanation or justifying the aforesaid act in any manner, it is respectfully submitted that the replying respondent has joined as Settlement Officer on 03-07-2007. The learned H.P. State Administrative Tribunal vide its judgment/orders dated 18.5.2007 had allowed the OA No. 2241 of 2006 filed by the respondent. The then Settlement Officer vide its letter dated 16.6.2007 addressed to the Financial Commissioner-cum-Secretary (Revenue) to the Govt. of H.P, sought advice of the Government as to whether the appeal can be filed in the present case. Copy of the letter-dated 16.6.2007 is being annexed as Annexure C-1 along with its English translation. The Settlement Officer/replying respondent vide its letter dated 3.8.2007, again sought the advise of the Government in the matter as to whether the appeal can be filed against the order dated 18-5-2007 passed by learned HP Administrative Tribunal. Copy of the letter-dated 3.8.2007 is being annexed as Annexure C-2. Thereafter vide orders dated 4.8.2007; the Settlement Officer has passed the orders in compliance to the judgment-dated 18.5.2007 passed in OA No. 2241/06. The copy of order dated 4-8-2007 is being annexed as Annexure C-3. However, vide letter dated 7.8.2007 i.e. Annexure C-4, the Government decided to file appeal against the judgment dated 18.05.2007 passed by the learned Tribunal. Thereafter, the present writ petition was prepared along with the application for grant of interim orders. The draft writ petition along with stay application was taken to the office of learned Advocate General, HP and the same was vetted by the office of learned Advocate General on 22.8.2007. 2. That in advertently, the factum of complying with the orders dated 18.5.2007 passed by the learned Tribunal was not mentioned in the application for grant of interim orders. The aforesaid mistake could not be detected even at the time when the draft Civil Writ Petition and the application for grant of interim orders was vetted in the office of learned Advocate General on 22.8.2007. 3. That the replying respondent had no intention to suppress any material fact from this Hon'ble Court. The replying respondent has highest regards for this Hon'ble Court and cannot think of making any incorrect or false statement in the pleadings and the mistake which has occurred as aforesaid, is unintentional and the same is deeply regretted. 3. That the replying respondent had no intention to suppress any material fact from this Hon'ble Court. The replying respondent has highest regards for this Hon'ble Court and cannot think of making any incorrect or false statement in the pleadings and the mistake which has occurred as aforesaid, is unintentional and the same is deeply regretted. The replying respondent expresses his regrets for failure on his part in not mentioning the orders dated 4.8.2007 whereby the judgment dated 18.5.2007 passed by the learned H.P. State Administrative Tribunal stands complied with. The mistake committed by the replying respondent is neither wilful nor intentional." 3. The background facts may be stated first. By an order dated 18.05.2007, in Original Application (O.A.) No. 2241 of 2006, Shri Bishan Lal v. State of H.P. and another, the erstwhile H.P. Administrative Tribunal (in short 'the Tribunal') had held as under: "In view of the foregoing reasons and the law settled we allow the present Original Application and quash the impugned order contained in Annexure A-1. Respondents directed to carry necessary correction in the service record of the applicant by substituting his date of birth as 28.6.1954 instead of 27.4.1950 and as a consequences thereof the applicant shall be entitled to all consequential benefits. Respondents are further directed to comply these directions within a period of two months from this order. With these observation Original Application stands finally disposed of." 4. The above order dated 18.05.2007 was challenged by the respondents therein, namely, State of H.P. through Secretary (Revenue) to the Government of H.P. and Settlement Officer, Shimla Division, the respondent herein, before this Court by way of CWP No. 1468 of 2007, State of H.P. and another v. Bishan Lal wherein the aforesaid order dated 28.09.2007 came to be passed in CMP No. 2382 of 2007 on the basis of which these contempt proceedings were initiated. 5. The record reveals that the aforesaid order dated 18.05.2007, passed by the Tribunal was duly implemented by the respondent herein by way of an Office Order dated 04.08.2007, a copy of which has been brought on record as Annexure C-3. 5. The record reveals that the aforesaid order dated 18.05.2007, passed by the Tribunal was duly implemented by the respondent herein by way of an Office Order dated 04.08.2007, a copy of which has been brought on record as Annexure C-3. However, when the aforesaid CWP No. 1468 of 2007 was filed on behalf of the State and the respondent herein, an application under Section 151 of the Code of Civil Procedure (in short 'CPC'), being CMP No. 2382 of 2007, seeking stay of operation of the impugned order dated 18.05.2007, passed by the Tribunal in O.A. No. 2241 of 2006, was also filed. The application and the affidavit filed in support thereof are dated 31.08.2007. However, these were filed in the Registry on 6th September, 2007. 6. In view of the above, it is manifest that though the order dated 18.05.2007, passed by the Tribunal in O.A. No. 2241 of 2006 had already been implemented vide Office Order dated 04.08.2007 (Annexure C-3), yet in advertently the aforesaid application under Section 151 CPC was filed with a prayer for staying operation of the impugned order dated 18.05.2007, passed by the Tribunal in O.A. No. 2241 of 2006, when in fact, such order stood already implemented. 7. The contempt proceedings came to be initiated against the respondent in the foregoing background. 8. Taking into consideration the submissions made by the respondent in his reply and the fact that the impugned order dated 18.05.2007 stood already implemented vide Office Order dated 04.08.2007, Annexure C-3, filing of the application for staying operation of the impugned order dated 18.05.2007, passed by the Tribunal in O.A. No. 2241 of 2006 and an affidavit in support thereof dated 31.08.2007/06.09.2007 in this Court on the face of it appears to be an inadvertent mistake committed by the respondent. 9. Above all, CWP No. 1468 of 2007, State of H.P. and another v. Bishan Lal, challenging the impugned order of the Tribunal dated 18.05.2007 in O.A. No. 22451 of 2006, wherein the aforesaid order dated 28.09.2007 was passed by this Court in CMP No. 2382 of 2007, out of which the present contempt proceedings have arisen, was ultimately allowed by this Court vide judgment dated 15.12.2008, operative part whereof, contained in paras 10 and 11 of the judgment, is as under: 10. In view of the above stated position, we are of the firm view that the order passed by the tribunal is illegal being contrary not only to the provisions of Rule 7.1 Chapter VII of H.P. Financial Rules, Volume-I, but also contrary to Section 21 of the Administrative Tribunals Act, which prescribes one year limitation for making original application. 11. As a result of the above stated position, we allow the writ petition and set aside the order of the tribunal. We have been told that the respondent, but for the order of the tribunal which the petitioners have implemented, would have superannuated on 30th April, 2008. Therefore, we order that even though the respondent may not be required to refund the salary and other allowances paid to him for his having served from Ist May, 2008 to date, this period of service shall not count towards qualifying service, for the purpose of pensionary benefits. As a consequence of the allowing of this writ petition, we order that the respondent shall cease to be in Government service from today, i.e. the date of passing of this judgment." 10. In view of the above, the contempt proceedings are dropped.