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2012 DIGILAW 1093 (PAT)

Surendra Kumar v. Prakash Chandra Mishra

2012-08-08

AHSANUDDIN AMANULLAH, R.M.DOSHIT

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ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) Learned advocates Mr. Dinesh Kumar and Mr. Amresh Kumar Singh appear for the respondent. Both of them have agreed that Mr. Dinesh Kumar shall appear before this Court. 2. Registry is directed to delete the name of Mr. Amresh Kumar Singh from the record. 3. Feeling aggrieved by the judgment and order dated 5th January 2011 insofar as directions are issued in M.J.C. No.3073 of 2009, the respondent Chief Engineer, the contemnor, has preferred this Appeal under Clause 10 of the Letters Patent. 4. It appears that the respondent-writ petitioner was a daily wage employee employed under the appellant Chief Engineer (Mechanical), Public Health Engineering Department, Government of Bihar. He served as such for a long time. Under order dated 30th November 2006, his service was regularized or he was absorbed in regular service. The said order of regularization in service was cancelled under order dated 24th March 2008 and by order dated 12th June 2008 he was reverted as a daily wage employee. Feeling aggrieved, he filed C.W.J.C. No. 10188 of 2008 under Article 226 of the Constitution. The said writ petition was allowed by the learned single Judge on 12th January 2009 in the same terms as the earlier order dated 9th January 2009 made on C.W.J.C. No. 9700 of 2008. The learned single Judge specifically set aside the orders dated 24th March 2008 and 12th June 2008. 5. In C.W.J.C. No. 9700 of 2008 filed by one Balmiki Prasad Singh, in the similar circumstances, the learned single Judge, under the above referred order dated 9th January 2009, held that the order of reversion was made without following the principles of natural justice. The learned single Judge observed, “… if he was to be deprived of the benefit of regularization and reverted to the original status of a daily wager, he would be visited with adverse consequences. … the respondents were obliged to notice the petitioner spelling out the errors in its decision seeking his response and then take a final decision.” 6. Pursuant to the direction issued on 12th January 2009, the Committee comprising the Principal Secretary, Public Health Engineering Department, the Engineer-in-Chief and the Chief Engineer (Mechanical), Public Health Engineering Department, constituted by the State Government, reconsidered the matter after giving notice to the writ petitioner. Pursuant to the direction issued on 12th January 2009, the Committee comprising the Principal Secretary, Public Health Engineering Department, the Engineer-in-Chief and the Chief Engineer (Mechanical), Public Health Engineering Department, constituted by the State Government, reconsidered the matter after giving notice to the writ petitioner. After receiving the reply and after hearing the writ petitioner, the Committee held that his regularization in service made earlier was irregular. The said decision of the Committee was communicated to the writ petitioner by the appellant under communication dated 11th January 2010. Feeling aggrieved, the appellant approached this Court under the Contempt of Courts Act, 1971 in M.J.C. No. 3073 of 2009. The M.J.C. was contested by the appellant. 7. The learned single Judge was of the opinion that the show cause notice issued to the writ petitioner was not in consonance with the directions issued in the writ petition and that the appellant had deliberately flouted the direction issued in the writ petition. Nevertheless, the learned single Judge did not initiate contempt proceedings against the appellant. He thought it fit to issue consequential directions, “for payment of difference of wages to the petitioners after deducting the same from the salary of opposite party no.2.” The learned single Judge also observed that the adamant attitude of the appellant had led to the avoidable litigation. The appellant is, therefore, visited with a cost of Rs.25,000.00 to be deducted from his salary and to be deposited in the Patna High Court Legal Services Committee. Therefore, this Appeal. 8. We have heard the learned advocates extensively. It is apparent that although the writ petition was allowed and the impugned orders of cancellation of the regularization of the writ petitioners was set aside, the learned single Judge did not issue consequential directions. We do agree that the setting aside of the impugned orders had a legal consequence of restoring the status-quo ante. But in absence of specific direction issued by the Court to restore the status-quo ante, strictly speaking the appellant cannot be said to have committed contempt of Court. Besides, the communication dated 11th January 2011, pursuant to the decision dated 21st December 2009 of the Committee, did constitute a fresh cause of action and would not amount to contempt of the Court. 9. Besides, the communication dated 11th January 2011, pursuant to the decision dated 21st December 2009 of the Committee, did constitute a fresh cause of action and would not amount to contempt of the Court. 9. If, for the sake of argument, we treat the said order or the communication dated 11th January 2010 as an order made in violation of the order issued in the writ petition and hold that the appellant was guilty of contempt of the Court, the appellant could have been punished for the same as envisaged by Section 12 of the Contempt of Courts Act, 1971. Under the said Section the contemnor can be punished with simple imprisonment for a term which may extend to six months or a fine which may extend to two thousand rupees or with both. 10. In the present case the learned single Judge, although was of the opinion that the appellant had committed the contempt of the Court, did not choose to punish him for the same. Instead has granted the consequential relief which was not granted in the writ petition. In other words, the proceeding under the Contempt of Courts Act has been used as a leverage for expanding the reliefs granted in the writ petition which clearly is not the purpose of the Contempt of Courts Act. 11. In our opinion, the learned single Judge has exercised the jurisdiction not vested in him under the Contempt of Courts Act. 12. For the aforesaid reasons, this Appeal is allowed. The impugned order dated 5th January 2011 made by the learned single Judge in M.J.C. No.3073 of 2009 is set aside. 13. We clarify that this order shall not preclude the writ petitioner from challenging the recommendation dated 21st December 2009 made by the Committee or the communication dated 11th January 2010 in a substantive proceeding on all available grounds.