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2012 DIGILAW 2735 (ALL)

Hasnain Khan v. State of Uttar Pradesh

2012-11-27

RITU RAJ AWASTHI

body2012
JUDGMENT : Ritu Raj Awasthi, J. C.M. Application 110757 of 2008 filed under Article 215 of the Constitution. This is an application under Article 215 of the Constitution moved by petitioner in Writ Petition No. 8033 (SS) of 1988 on the allegation that opposite parties have not complied the judgment and order dated 29.3.2006 passed in Writ Petition No. 8033 (SS) of 1988. 2. The perusal of judgment dated 29.3.2006 aforesaid, indicates that petitioner had earlier filed Writ Petition No. 2855 of 1981 and prior to that he had also preferred claim petition before U.P. State Public Service Tribunal claiming therein for confirmation of the services. The said claim petition was allowed and being aggrieved thereof U.P. Jal Nigam had challenged the order of the Tribunal, the same was numbered as Writ Petition No. 107 of 1983. Both the writ petitions were taken up for hearing and decided by a common judgment dated 29.11.1984. The writ petition preferred by petitioner against termination order i.e. Writ Petition No. 2855 of 1981 was allowed whereas writ petition preferred by opposite parties against the order of Tribunal being W.P. No. 107 of 1983 was dismissed. Petitioner after obtaining certified copy of the order produced the same before opposite parties and requested that petitioner be treated in continuity of service with all benefits accruing to him as if he was in service and his services were never terminated. As the opposite parties failed to pass appropriate orders in his favour, petitioner had preferred an application for clarification of the judgment and order dated 29.11.1984, the said application was numbered as C.M. Application No. 5791(W) of 1986 and the Court was pleased to pass the following order on 5.9.1986. "The applicant was petitioner in Writ Petition No. 2855 of 1981. He was aggrieved by termination of his services. The writ petition was allowed by judgment and order dated 29.11.1984, operative portion of which reads as under: 'Thus, in the end Writ Petition No. 2855 of 1981 is allowed with costs and the impugned order of termination dated 21.5.1981 (Annexure-6) is quashed. Writ Petition No. 107 of 1983 is dismissed with costs.' Grievance of applicant is that despite the fact that this Court quashed order of termination of service he is not being allowed continuity of service. Writ Petition No. 107 of 1983 is dismissed with costs.' Grievance of applicant is that despite the fact that this Court quashed order of termination of service he is not being allowed continuity of service. Submission of learned counsel for applicant is correct that in view of the fact that the order terminating petitioner's service was quashed, petitioner is entitled to continuity of service. We accordingly clarify our order dated 29.11.1984 by providing that the petitioner will be allowed continuity in service with all consequential benefits including payment of salary." 3. After dismissal of the aforesaid writ petitions, petitioner had made several representations to opposite parties but the order passed by the High Court in Writ Petition No. 2855 of 1981 was not complied with by opposite parties. It was in these circumstances that petitioner again filed Writ Petition No. 8033 (SS) of 1988 praying for following reliefs: "(a) a writ order or direction in the nature of mandamus commanding the opposite parties to comply the order dated 5.9.1986 quoted above in para-15 and page 5, 6, 7 of the writ petition passed in the writ petition No. 2855 of 1981 within two weeks or so; (b) a writ any other order or direction commanding the opposite parties to pay the petitioner's loss for as the order of this Hon'ble Court has not complied with till today and petitioner has not given the benefit as directed by this Hon'ble Court vide order dated 5.9.1986 in writ petition no. 2855 of 1981 as damages; (c) to pass any other order or direction in the circumstances of the case and to allow the writ petition with costs." 4. The Court vide judgment and order dated 29.3.2006 had come to conclusion that the relief claimed by petitioner in the instant writ petition and in writ petition no. 2855 of 1981 are identical in nature and as such in view of Chapter VII Rule XIII of the High Court Rules it is clear that successive relief for the same cause of action is not maintainable. While dismissing the writ petition the Court had observed that petitioner has equally efficacious alternative remedy by moving an application under Article 215 of the Constitution of India or initiation of contempt proceedings in accordance with law of Contempt of Court Act. While dismissing the writ petition the Court had observed that petitioner has equally efficacious alternative remedy by moving an application under Article 215 of the Constitution of India or initiation of contempt proceedings in accordance with law of Contempt of Court Act. It was thereafter that application under Article 215 of the Constitution was preferred by the petitioner on 3.12.2008. 5. Learned counsel for petitioner submitted that order passed by the Court in Writ Petition No. 2855 of 1981 has not been complied with till date. He has been given liberty to file application under Article 215 of the Constitution vide judgment and order dated 29.3.2006 and therefore he has preferred this application which is liable to be entertained. 6. I have considered the submissions made by learned counsel for petitioner. 7. In order to assist the Court I had called upon to Mr. Lalit Shukla, learned Additional Chief Standing Counsel to place the relevant provisions of law and the case laws on the question of maintainability of application under Article 215 of the Constitution. 8. Mr. Lalit Shukla, learned Additional Chief Standing Counsel submitted that Article 215 of the Constitution empowers the High Court to 'punish for contempt of itself'. For convenience Article 215 of the Constitution on reproduction reads as under: "215. High Courts to be courts of record-Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself." It is further submitted that under Article 246(2) of the Constitution, the Parliament has been empowered to make law with respect to any subject given in List III of Seventh Schedule (Concurrent List). Article 246(2) on reproduction reads as under: 246(2). Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State [* * *] also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List"). 9. It is submitted by Mr. Lalit Shukla, learned Additional Chief Standing Counsel that in Seventh Schedule List III Item no. 14 subject contempt has been provided. The Parliament has enacted Contempt of Court Act, 1971 in exercise of powers conferred under Article 246(2) of the Constitution. 9. It is submitted by Mr. Lalit Shukla, learned Additional Chief Standing Counsel that in Seventh Schedule List III Item no. 14 subject contempt has been provided. The Parliament has enacted Contempt of Court Act, 1971 in exercise of powers conferred under Article 246(2) of the Constitution. Submission is that once the contempt of Court Act defining the procedure has been enacted, the Court while exercising the power under Article 215 of the Constitution is required to act in accordance with the procedure laid down in the Contempt of Court Act. 10. It is further submitted that under Contempt of Court Act the period of limitation is prescribed as one year from the date of knowledge, as such, the present application under Article 215 of the Constitution is not maintainable on the ground that it has been preferred with inordinate delay and laches. 11. In support of his submission Mr. Lalit Shukla has placed reliance on the judgment rendered in the case of Pallav Sheth v. Custodian and others [ 2001 (7) SCC 549 ], particularly, para-31 of the judgment wherein it has been observed that the power or jurisdiction has to be exercised in accordance with law, if any, enacted by the legislature, it would stand to reason that the power under Article 129 and/or Article 215 should be exercised in consonance with the provisions of a validly enacted law. In case of apparent or likelihood of conflict the provisions should be construed harmoniously. Relevant para-31 of the judgment on reproduction reads as under: "31. This Court has always frowned upon the grant or existence of absolute or unbridled power. Just as power or jurisdiction under Article 226 has to be exercised in accordance with law, if any, enacted by the legislature, it would stand to reason that the power under Article 129 and/or 215 should be exercised in consonance with the provisions of a validly enacted law. In case of apparent or likelihood of conflict the provisions should be construed harmoniously." In para-44 of the aforesaid judgment, the Apex Court has opined that action to initiate contempt proceedings must be taken within one year from the date on which the contempt is alleged to have been committed. Relevant para-44 of the judgment on reproduction reads as under: "44. Relevant para-44 of the judgment on reproduction reads as under: "44. Action for contempt is divisible into two categories, namely, that initiated suo motu by the court and that instituted otherwise than on the court's own motion. The mode of initiation in each case would necessarily be different. While in the case of suo motu proceedings, it is the court itself which must initiate by issuing a notice, in the other cases initiation can only be by a party filing an application. In our opinion, therefore, the proper construction to be placed on Section 20 must be that action must be initiated, either by filing of an application or by the court issuing notice suo motu, within a period of one year from the date on which the contempt is alleged to have been committed." 12. In the present case the allegation of the petitioner is that the judgment dated 5.9.1986 passed in Writ Petition No. 2855 of 1981 has not been complied. For its compliance he had preferred Writ Petition No. 8033 (SS) of 2008 which was dismissed vide judgment and order dated 29.3.2006 with liberty to file application under Article 215 of the Constitution of India. Petitioner had applied for certified copy of the order well within time which was received by him on 9.4.2007 and thereafter he has preferred this application under Article 215 of the Constitution as per liberty given by the Court in its judgment dated 29.3.2006. 13. Even if, the case as set out by the petitioner is taken to be correct it is to be noted that even after receiving the copy of the judgment dated 29.3.2006 the application of petitioner suffers with inordinate delay and laches as he has received the judgment on 9.4.2007 whereas this application was moved only on 3.12.2008. It is also to be noted that in fact the petitioner wants compliance of the judgment dated 5.9.1986 passed in Writ Petition No. 2855 of 1981. 14. Considering the entire facts and circumstances of the case I am of the considered opinion that application preferred by petitioner under Article 215 of the Constitution in the facts and circumstances is not maintainable, firstly, on the ground of inordinate delay and laches and secondly, no contempt of the judgment dated 29.3.2006 passed in Writ Petition No. 8033 (SS) of 1988 can be said to be made out. 15. The application is dismissed.