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2015 DIGILAW 104 (JK)

Mohammad Ashraf Bukhari v. Shafat Hussain Quadimi

2015-03-17

ALI MOHAMMAD MAGREY, MUZAFFAR HUSSAIN ATTAR

body2015
JUDGMENT Muzaffar Hussain Attar This Latters Patent Appeal (LPA) is filed against the order dated 02nd December, 2014 passed by learned Single Judge, while dealing with the Contempt Petition No. 433/2014 arising out of SWP NO: 781/2010. Before dealing with the submissions made at bar by learned counsel for the parties, the facts which emerge from the writ record are briefly detailed out. Government issued order No. 185-PW(Hyd) of 2004 dated 18.05.2004. In terms of said order, sanction was accorded to the re-instatement of the petitioners and some other persons. In the said re-instatement order, it is provided that the intervening period of suspension shall be decided on the conclusion of the court proceedings. Condition contained in the above order was called in question in SWP NO: 781/2010. The learned Single Judge vide order dated 23rd April, 2012 disposed of the writ petition. Operative part of order is taken note of: “…The respondents have failed also to make a decision about the period of suspension till today which is violative an discriminatory. Respondents have filed reply. Admittedly no Departmental enquiry is pending against the petitioners. The question is as to whether the respondents can afford to keep the decision vis-à-vis the period of suspension. At the cost of repetition. It is requested that petitioners were placed under suspension in terms of Article 133 of Civil Service Regulations and it is for the respondents in terms of the said provision to revoke the suspension order which came to be revoked. Thus respondents had to decide the suspension period. Keeping in view the mandate of Article 108 of Jammu and Kashmir Civil Service Regulations read with ratio laid down by the Apex Court in SCC 1987(3) 258, titled as E. S. Reddi versus Chief Secretary, Govt. of A.P. And Anr. Respondents are directed to decide the period of suspension as per the Rules within one month from the date copy of the order is served upon them notwithstanding the condition contained in order dated 18-05-2004. The writ petition is accordingly disposed.” The Contempt petition was filed in which petitioners claimed that judgment of the court has not been complied with. The Government in compliance with the Court judgment passed an Order No. 415-PW(Hyd) of 2014 dated 20th November, 2014. The writ petition is accordingly disposed.” The Contempt petition was filed in which petitioners claimed that judgment of the court has not been complied with. The Government in compliance with the Court judgment passed an Order No. 415-PW(Hyd) of 2014 dated 20th November, 2014. In the said Government Order, it has been observed that the period of suspension of the petitioners could not be decided for the reasons that matter is subjudice before the Criminal Court and petitioners have not been fully exonerated as is mandated by Article 108-B (ii) of Civil Service Regulations (CSR). The learned Single Judge in terms of impugned order has observed that the stand taken by the respondent-State (appellant) in the fresh statement of facts is not tenable as appellants have reiterated their stand that suspension period is to be settled after the criminal trial is concluded. The learned Single Judge further observed that in terms of writ court order, decision was to be taken on the claim of the petitioners un-mindful of pendency of the trial. Respondents were accordingly directed to comply with the Court order and report compliance by or before next date of hearing. Mr. J.A. Kawoosa, learned SR. AAG submitted that the judgment of the Court has been complied with and in contempt petition, learned Single Judge could not issue fresh directions. Learned counsel submitted that the course adopted by learned Single Judge is not countenanced by law. Learned counsel accordingly prayed for setting aside of the order. Mr. M.A. Qayoom, learned counsel for the respondents raised objections about maintainability of the LPA and submitted that the Appeal can be filed only when a person is punished by the Court. Learned counsel also submitted that there is no compliance with the Court order and appellants prima facie appear to have committed contempt of Court by not complying with the judgment passed in SWP NO: 781/2010. Learned counsel submitted that the learned writ court in the judgment directed the appellants to decide the period of suspension under rules within one month, notwithstanding the condition contained in the order dated 18th May, 2004. Learned counsel submitted that the learned writ court in the judgment directed the appellants to decide the period of suspension under rules within one month, notwithstanding the condition contained in the order dated 18th May, 2004. Learned counsel accordingly submitted that the condition contained in the impugned order was to be ignored in terms of the writ court judgment which has attained finality and the appellants are duty bound to implement the judgment which as per submissions of learned counsel would mean that the period of suspension is to be treated as period spent on duty as a mandate contained in Article 108 of CSR. The learned writ court in the judgment dated 23rd April, 2012, while observing that in view of the mandate contained in Article 108 of CSR and law laid down by Hon’ble the Supreme Court in a decision reported in SCC 1987 (3) 258, directed the respondents to decide the period of suspension as per rules, notwithstanding the condition contained in the order dated 18th May, 2004. In the aforesaid backdrop, Article 108-B (i) (ii) are taken note of:- “(i) When a Government servant who has been dismissed, removed, compulsorily retired before attaining the age of superannuation, or suspended is reinstated the authority competent to order the reinstatement shall consider and make a specific order:- (a) Regarding the pay and allowance to be paid to such Government servant for the period of his absence from duty; and (b) Whether or not the said period shall be treated as a period spent on duty. “(ii) Where the authority mentioned in sub-rule (i) is of opinion that the Government servant has been fully exonerated or in the case of suspension, that it was wholly unjustified the Government servant shall be given the full pay and allowances to which he would have been entitled had he not been dismissed, removed, compulsorily retired before attaining the age of superannuation or suspended, as the case maybe. The period of absence from duty shall be treated as period spent on duty.” In the Article 108-B (i) of the CSR, it is prescribed that the Government Servant who has been dismissed, removed, compulsory retired before attaining the age of superannuation, or suspended when re-instated, then competent Authority shall consider and make specific order regarding pay and allowance to be paid to such Government servant for the period of his absence from duty and shall pass orders whether or not the said period shall be treated to have been spent on duty. 108-B (ii) prescribe that where the authority mentioned in sub-rule (i) is of the opinion that the Government servant has been fully exonerated or in the case of suspension, that it was wholly unjustified, the Government servant shall be paid full pay and allowances to which he would be entitled for the period of suspension and in such case the period of absence is to be treated as period spent on duty. Admittedly, before filing of the writ petition, writ petitioners were already re-instated into service. The learned writ court directed the appellant to pass the orders in respect of period of suspension in accordance with rules, notwithstanding the condition contained in the impugned order. Article 108-B (ii) of CSR provides that the competent authority can order for treating the period under suspension as period spent on duty provided the Government servant is fully exonerated or his suspension is declared to be wholly unjustified. Learned writ court has not recorded any finding about either of the two specified eventualities, but has allowed the Competent Authority to take decision in accordance with rules. The Authority when directed to take decision in accordance with rules would mean that the authority has to follow the rules. Further direction issued that consideration shall be accorded, notwithstanding, the condition contained in the impugned order has created confusion in the minds of appellants, as to whether they have to follow the rules or simply pass an order by treating the period spent on suspension as on duty. Further direction issued that consideration shall be accorded, notwithstanding, the condition contained in the impugned order has created confusion in the minds of appellants, as to whether they have to follow the rules or simply pass an order by treating the period spent on suspension as on duty. If, because of Court order the authority is landed into confusion and bonafide believe that court direction is to be followed in a particular manner, in such eventuality, it cannot be said that the Authority has intentionally or deliberately violated the Court orders and initiation of contempt proceedings in such situation would not commensurate with settled legal norms. The authorities have followed the rules and passed the consideration order. They have not violated the Court orders. The Contempt petition would not be maintainable for yet another reason. Assume that the condition contained in re-instatement order, which was impugned in the writ petition was not incorporated in the said order. The writ petitioners would have not filed the writ petition, the authority had to pass orders in accordance with rules. Yet again, as in the facts of this case, the authority is directed to consider the case of writ petitioners in accordance with rules, notwithstanding the impugned condition in the re-instatement order. The impugned condition is thus to be ignored, leaving the authority to deal with claim of writ petitioners in accordance with rules. The authority has followed the rules and complied with the Court judgment. The contempt petition filed by respondents is not maintainable and is liable to be dismissed. The appellants have not given finding that the suspension of the respondents was wholly unjustified, but have in fact recorded the finding that they have not been fully exonerated. In this fact situation, fresh direction has been issued by the learned Single Judge in terms of the impugned order. When a fresh direction is issued in a contempt proceedings, which is in addition to the direction issued in the writ court judgment then LPA is competent. We accordingly hold that this LPA is competent. We further hold that the direction issued by the learned writ court in terms of impugned order is not sustainable in law and is accordingly set aside. The Appeal is accordingly disposed of with the aforesaid observations.