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2014 DIGILAW 1200 (PAT)

Ghanshyam Jha v. State of Bihar

2014-12-05

V.NATH

body2014
V.Nath, J. – Heard Mr Rajendra Narain, the learned senior counsel appearing on behalf of the petitioner and Mr D.K. Sinha, the learned A.A.G.-II for the opposite parties in this contempt petition as well as I.A.No.4152/2014. The pleadings are complete and with the consent of the parties, this contempt petition is finally disposed of by this judgment and order. 2. The factual expose’ are that the departmental proceeding was initiated against the petitioner by resolution dated 30.01.2008 for the charges mentioned in the chargesheet annexed therewith. After the conduct of the enquiry, the enquiry officer submitted the report on 08.06.2009 exonerating the petitioner from all the 8 charges levelled against him. The disciplinary authority, however, after the consideration of the enquiry report by order dated 21.09.2010 communicated to the petitioner its disagreement to the enquiry report on the charge nos.1, 2, 3, 5 and 7 and its decision to initiate a fresh departmental proceeding on those charges. By resolution dated 23.09.2010, the petitioner was served with a chargesheet in Form “K” and was directed to appear before the enquiry officer. The petitioner filed CWJC No.17426/10 before this Court praying for quashing the communication vide order dated 21.09.2010 and the resolution dated 23.09.2010 whereby the order for fresh enquiry on the basis of fresh chargesheet has been passed. According to the learned counsel for the petitioner, it was specific case of the petitioner in the said writ application that the initiation of fresh enquiry could not be legally sustained in view of Rule 18(i) and (ii) of the Bihar Government Servant (Classification, Control & Appeal) Rules, 2005 and if the disciplinary authority had decided at all to differ with the findings in the enquiry report it ought to have issued a show cause notice with its tentative findings on the points of difference but in no event, the fresh enquiry could have been ordered. After hearing the parties, this writ application was disposed of by order dated 03.10.2012 which reads as follows: – “….Upon perusal of the order passed by the punishing authority, this Court finds that the order is not in the tune with the language of Rule 18(1) of the Bihar Government Servant (Classification, Control & Appeal) Rules, 2005. Therefore, the order shall be read down that the matter stands remitted to the Inquiry officer for further enquiry. Therefore, the order shall be read down that the matter stands remitted to the Inquiry officer for further enquiry. Inquiry Officer shall conclude further inquiry within a period of one month from the date of receipt/production of a certified copy of this order and thereafter the punishing authority shall take a decision within a period of 15 days. With the above observation, the writ petition is disposed of. 3. The petitioner thereafter filed MJC No.137/13(Contempt) praying for initiating a contempt proceeding against the opposite parties alleging willful and deliberate disobedience of the order dated 03.10.2012 passed in aforesaid CWJC No.17426/10. It was the case of the petitioner in this contempt petition that in spite of the order passed by this Court in CWJC No. 17426/10, the opposite parties had persisted with the decision to conduct fresh departmental proceeding against the petitioner and had issued order dated 18.12.2012 directing the petitioner to appear before the Inquiry Officer for fresh enquiry. The petitioner also filed I.A.No. 7694/13 praying for stay of the proceeding of the fresh enquiry. By order dated 25.10.2013, the show cause notice was issued to the opposite parties in the contempt matter and the proceeding of fresh enquiry against the petitioner was stayed till further order. During the pendency of the MJC No.137/13, the petitioner filed another MJC No. 6254/2013 alleging willful violation of this interim order dated 25.10.2013 with prayer for initiating contempt proceeding against the opposite parties. Both the MJC No.137/2013 and MJC No. 6254/13 were heard analogously and after hearing the parties the two contempt applications were disposed of by order dated 22.01.2014. The relevant portions of this order dated 22.01.2014 reads as follows: – “…………………… Mr. D.K. Sinha, the learned Additional Advocate General, however, in order to purge, has taken the stand that any proceeding or order passed after 03.10.2012 shall stand wiped out and shall not be taken in consideration any more and the parties shall stand relegated to the stage after the order dated 03.10.2012 passed in C.W.J.C. No.17426/10 by this Court. The learned counsel for the petitioner has submitted that he has now no grievance in view of the stand taken by the learned Additional Advocate General. In view of the aforesaid stand and statement by the learned Additional Advocate General, the two contempt applications are accordingly disposed of…” 4. The learned counsel for the petitioner has submitted that he has now no grievance in view of the stand taken by the learned Additional Advocate General. In view of the aforesaid stand and statement by the learned Additional Advocate General, the two contempt applications are accordingly disposed of…” 4. The present contempt application has thereafter been filed by the petitioner alleging willful disobedience of the order dated 22.01.2014 passed in MJC No. 137/2013 alongwith MJC No. 6254/13 read with order dated 03.10.2012 passed in CWJC No.17426/10 of this Court. It has been stated by the petitioner that the opposite parties have issued second show cause notice dated 21.03.2014 on the basis of the first enquiry report submitted on 08.06.2009 which is in disobedience to the directions contained by this Court in the aforesaid order dated 03.10.2012 passed in the writ application and the order dated 22.01.2014 passed in the contempt petition. It has been asserted by the petitioner that this Hon’ble Court had remitted the matter back for further enquiry to the Inquiry Officer but without conducting the further enquiry as directed, the second show cause notice has been issued under Rule 18 (iii) of the Bihar Government Servant (Classification, Control & Appeal) Rules, 2005. During the pendency of this contempt application the petitioner has also filed I.A. No. 4152/14 praying for stay of further proceeding in the departmental proceeding. 5. The show cause has been filed on behalf of the opposite party nos. 2 to 5 denying the allegations of disobedience. It has been stated in the show cause that the second show cause notice was issued on 21.03.2014 in accordance with the stand taken by the opposite parties that any proceeding or order passed after 03.10.2012 would stand wiped out and would not be taken in consideration any more. It has been further stated that the second show cause notice was issued by the disciplinary authority stating the reasons of difference with the first enquiry report dated 08.06.2009 and the petitioner also submitted his written reply on 07.04.2014. It has been further stated that after consideration of the reply of the petitioner to the second show cause notice, the disciplinary authority took the decision to dismiss the petitioner from service in accordance with the provisions of Bihar Government Servant (Classification, Control & Appeal) Rules, 2005. It has been further stated that after consideration of the reply of the petitioner to the second show cause notice, the disciplinary authority took the decision to dismiss the petitioner from service in accordance with the provisions of Bihar Government Servant (Classification, Control & Appeal) Rules, 2005. It has also been pointed out that advice of Bihar Public Service Commission, as required before passing the final order in the matter, has been sought for and after the concurrence of the Commission, the final order will be passed. The opposite parties have denied the allegation that they are continuing with fresh departmental proceeding in disobedience to the direction of this Court as abovementioned. 6. The learned senior counsel on behalf of the petitioner, after placing the order passed in C.W.J.C. No. 17426 of 2010 as well as the order passed in the earlier two contempt petitions, has emphatically submitted that there was clear and specific directions by this Court to the respondents to proceed with further inquiry and as such the issuance of second show cause notice purporting to be under Rule 18 (3) of the Bihar Government Servant (Classification, Control & Appeal) Rules, 2005 has been clearly ruled out. It has been canvassed that even after the order dated 22.01.2014 passed in the two contempt applications as abovementioned, the parties had stood relegated to the stage after the order dated 03.10.2012 passed in the writ application and that stage was definitely the stage of further inquiry. The learned senior counsel has also pointed out by referring to the Annexure-16 of the reply affidavit on behalf of the petitioner that the final decision of dismissal was taken on 09.10.2013 but the same stood wiped out in view of the order dated 22.01.2014 recording the undertaking on behalf of the opposite parties in that regard but the same decision has been relied on by the opposite parties for obtaining the advice/concurrence of the Bihar Public Service Commission which fact is borne out from Annexure-A to the show cause filed by the opposite parties. It has, therefore, been propounded that the opposite parties have deliberately and willfully violated the above orders of this Court and thereby have become liable for punishment for committing contempt. 7. It has, therefore, been propounded that the opposite parties have deliberately and willfully violated the above orders of this Court and thereby have become liable for punishment for committing contempt. 7. In reply, the learned Additional Advocate General has submitted that there was no specific direction of this Court in the order dated 03.10.2012 to the respondents, while disposing of the writ application, to proceed with further inquiry alone not there was any such payer by the petitioner in that writ application. It has been canvassed that by the said order of this Court, the initial order for “fresh inquiry” was only read down as “further inquiry”, which was the specific rather the singular prayer in the writ application and the remaining portions of the said order in this fact and circumstances was only by way of observations which is also apparent from the concluding portion of the said order. It has also been submitted that even by order dated 22.01.2014, the two contempt petitions were disposed of after recording the statement of the opposite parties that any proceeding or order passed after 03.10.2012 would stand wiped out and would not be taken in consideration any more and again there was no direction to the opposite parties to proceed with the further inquiry only. The learned Additional Advocate General, therefore, has propounded that the order to issue of second show cause notice to the petitioner and the decision to dismiss the petitioner from service after consideration of the second show cause, thus, cannot by any stretch amount to violation of any direction of this Court. 8. After careful consideration of the matter and the submissions on behalf of the parties, it is pellucid that the C.W.J.C. No. 17426 of 2010 was filed by the petitioner assailing the order and resolution of the opposite parties for conducting fresh departmental proceeding on the basis of fresh charge sheet. The said writ application was disposed of by order dated 03.10.2012 (Annexure-1/1) after finding that the order for fresh inquiry was not in accordance with the Rule 18 (1) of the Bihar Government Servant (Classification, Control & Appeal) Rules, 2005 and sequentially the order for initiating the fresh inquiry was read down observing that the matter stood remitted back to the inquiry officer for further inquiry. The rule of reading down is applied only where two views are possible and when this Court has adopted the said rule for interpreting the order in question in the said writ application, it is apparently for the purpose of interpretation and nothing more. The averments made in the pleadings of the said writ application also display that there was no issue inviting the adjudication by this Court that the ‘further inquiry’ must necessarily was to be done. This Court has only determined the main and only controversy between the parties in the said writ application which pertained to the jurisdiction of the respondents to proceed with ‘fresh inquiry’, and after determining the said issue by reading down the impugned order, the remaining part of the order dated 03.10.2012 was only by way of ‘observations’ and not ‘directions’ which position is further clarified even by the last portion of the said order. There was definitely no positive direction in this regard nor there was any occasion for this Court to issue command to the respondents to conduct the further enquiry foreclosing every other options. The submission on behalf of the petitioner that the respondents, after taking the decision to proceed with further enquiry (after the order for ‘fresh enquiry’ was read down), could not have issued the second show cause notice on the basis of the first enquiry report, might have bearing upon the legality of the order for issuing second show cause notice but it cannot be held to be violation of any direction of this Court. It is beyond cavil that the charge of contempt court cannot be sustained by reading a direction between the lines of the order, the violation of which has been alleged unless the direction is unambiguously explicit. 9. In the two contempt petitions i.e. M.J.C. No. 137 of 2013 and M.J.C. No. 6254 of 2013 also, the only allegation of the petitioner was that the opposite parties had been pursuing with the fresh inquiry in violation of the order dated 03.10.2012 in C.W.J.C. No. 17426 of 2010 and also the interim order of stay. Here again there was no direction issued to the opposite parties (respondents in the C.W.J.C. NO. Here again there was no direction issued to the opposite parties (respondents in the C.W.J.C. NO. 17426 of 2010) to proceed with the further inquiry alone and instead the two contempt petitions were disposed of by order dated 22.01.2014 in view of the statement on behalf of the opposite parties that any proceeding or order passed after 03.10.2012 would stand wiped out and would not be taken into consideration any more and the parties shall stand relegated to the stage after the order dated 03.10.2012 passed in C.W.J.C. No. 17426 of 2010 by this Court. The centrirorial issue between the parties in the writ application and the two contempt petitions had therefore consistently been the legality of the decision to proceed for ‘further enquiry’. 10. The extent and scope of the power of the court to punish for contempt of its order has been reiterated by the Apex Court in a recent decision in the case of Sudhir Vasudeva, Chairman and MD. ONGC vs. M. George Ravishekaran, J.T. 2014 (2) S.C. 481 as follows: – “…….The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or willful violation of the same. Decided issues cannot be reopened; nor the plea of equities can be considered. Only such directions which are explicit in a judgment or order or are plainly self evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or willful violation of the same. Decided issues cannot be reopened; nor the plea of equities can be considered. Courts must also ensure that while considering a contempt plea the power available to the court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above………………………..” (emphasis supplied) 11. Tested on the anvil of the aforesaid dictum, it is, thus, vivid that the issue of the second show cause notice on 21.03.2014 (Annexure-2) to the petitioner under Rule 18 (3) of the Bihar Government Servant (Classification, Control & Appeal) Rules, 2005 cannot be said to be in violation or disobedience of the orders passed by this Court as abovementioned. The issue of legality and propriety of the second show cause notice or the orders said to have been passed thereafter cannot be adjudicated by exercise of jurisdiction in the domain of the contempt law and the petitioner is always at liberty to seek his remedy in other more appropriate jurisdiction vested in this Court. By order dated 03.10.2012 in C.W.J.C. No. 17426 of 2010, this Court only held that the respondents could have only proceeded for further inquiry as distinguished from fresh inquiry but there was definitely no mandate of this Court directing the respondents to proceed with further inquiry only. The effect of the order dated 22.01.2014 passed in the two contempt petitions thereafter is only that any order or proceeding after 03.10.2012 stood wiped out but again there was no undertaking by the opposite parties therein to proceed with further inquiry alone. Whether the proposed dismissal order of the petitioner after the second show cause notice would be justified, in face of the decision by the disciplinary authority for ‘fresh inquiry’ which had been read down by this Court as ‘further inquiry’, is an aspect that cannot be cogitated in the contempt jurisdiction. 12. Whether the proposed dismissal order of the petitioner after the second show cause notice would be justified, in face of the decision by the disciplinary authority for ‘fresh inquiry’ which had been read down by this Court as ‘further inquiry’, is an aspect that cannot be cogitated in the contempt jurisdiction. 12. For the aforesaid reasons and discussions, this Court is not persuaded to initiate a contempt proceeding against the opposite parties, as prayed. This contempt petition is, accordingly, dismissed.