Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 2604 (ALL)

Ritu Maheshwari v. State of U. P.

2015-08-25

A.P.SAHI, PRAMOD KUMAR SRIVASTAVA

body2015
JUDGMENT 1. The Contempt Appeal No. 4 of 2012 was listed yesterday when we passed the following order: - "Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Pramod Kumar Srivastava,J. Sri Pankaj Saxena, learned counsel is present today in Court on behalf of the appellant and he prays that this matter be taken up tomorrow as there are two other appeals listed alongwith this appeal. Put up tomorrow. Order Date : - 24.8.2015" 2. Today all the three appeals are listed at Serial No. 2 of the Cause List showing the names of the learned counsel appearing in the case. 3. These contempt appeals have been filed by the then District Magistrate, Shahjahanpur, questioning the order of the U.P. Public Services Tribunal dated 19th November, 2012, in separate contempt petitions that were filed alleging non-compliance of the judgment dated 19th January, 2012 in all the three matters. 4. The private opposite parties in all these three appeals were claiming regular appointment on the post of Collection Peons which had not been considered by the District Magistrate Shahjahanpur. The claim petitions were allowed with a direction that their cases for regular appointment on the post of regular Collection Peons deserves to be considered in the light of the allegations that some colleagues of the claimants had already been extended such benefits. The claim petitions were accordingly allowed directing the District Magistrate to entertain the representations to be filed by such claimants and after considering the same in accordance with law to decide it within a period of three months from the date of receipt of a certified copy of the judgment. 5. Sri Saxena, learned counsel for the appellant submits that Sri A.K. Baranwal was the then District Magistrate upon whom the judgment of the Tribunal dated 19th January, 2012 was served and who proceeded to consider the claim and rejected the representation of the claimants vide order dated 13th April, 2012. The said order records that the representation cannot be allowed in view of the Government Order dated 8th September, 2010 as also the subsequent ban imposed by the State Government vide Government Order dated 15th March, 2012. 6. The said order records that the representation cannot be allowed in view of the Government Order dated 8th September, 2010 as also the subsequent ban imposed by the State Government vide Government Order dated 15th March, 2012. 6. The matter also reached the appellant who took over as District Magistrate Shahjahanpur and she also passed a separate order on 17th November, 2012 again reiterating the same position but also giving additional reasons to the effect that the claimants had given a wrong information to the Tribunal about other colleagues having been extended such similar benefits. 7. It appears that on the passing of such orders and under an apprehension that the directions of the Tribunal had not been complied with, the proceedings for contempt were initiated. During the pendency of the contempt proceedings under Section 5-A of the Public Services Tribunal Act and the rules framed thereunder, the compliance affidavits were filed, but on 19th November, 2012 the Tribunal upon a consideration of the orders passed by the earlier District Magistrate and the present appellant came to the conclusion that the Tribunal was left with no option but to hold that the opposite party (contemnor) has deliberately disobeyed the Tribunal's order dated 19th January, 2012 and a subsequent direction given on 30th July, 2012. Accordingly, the appellant was called upon to be personally present on 17.12.2012 for framing of charges. 8. It is at this stage that the present appeals were filed in view of the provisions of Section 5-A of the Tribunals Act 1985 which makes a provision for an appeal at par with an appeal which would be maintainable under Section 19 of the Contempt of Courts Act, 1971. 9. On 11th December, 2012 a division bench proceeded to stay the operation of the order impugned dated 19.11.2012 whereafter the same was continued and the appeal has now come up for hearing. A counter affidavit has been filed on behalf of the private respondents copies whereof have been perused by us on being supplied by Sri Saxena. There is no one present on behalf of the private respondents. The counter affidavit acknowledges several facts stated in the affidavit filed in support of the contempt application, particularly paragraph 3 of the counter affidavit of Shri Chand filed in Contempt Appeal No. 4 of 2012. Similar is the position in the Contempt Appeal No. 5 of 2012. There is no one present on behalf of the private respondents. The counter affidavit acknowledges several facts stated in the affidavit filed in support of the contempt application, particularly paragraph 3 of the counter affidavit of Shri Chand filed in Contempt Appeal No. 4 of 2012. Similar is the position in the Contempt Appeal No. 5 of 2012. So far as the Contempt Appeal No. 6 of 2012 is concerned, the private respondent has moved a stay vacation application and also an affidavit contesting the appeal on merits. 10. We have perused the same and the first issue is as to whether this Court should now proceed in this appeal treating it to be maintainable against the order impugned. 11. What we find on record is that the direction of the Tribunal dated 19th January, 2012 has been complied with in pith and substance by the District Magistrate and also the appellant under the order dated 17.11.2012. The representations have been rejected on merits. In such circumstances, the option left to the private respondents was to file either a claim petition or challenge it before any other appropriate forum. 12. Learned counsel Sri Saxena submits that in that view of the matter the findings recorded by the learned Tribunal that there is a deliberate disobedience on the part of the officials does not appear to be correct on the face of record and consequently the proceedings so initiated for drawing contempt are without jurisdiction. 13. Sri Saxena further submits that even otherwise if the appeal is held to be maintainable then in that event as well the finding recorded to the effect that the Tribunal was left with no option but to hold the appellant guilty amounts to a decision which should be treated only to be a prima facie observation and not a final decision under the Contempt of Courts Act. 14. In the background aforesaid and that the claimants have the option to challenge the orders passed against them we do not find any reason for the Tribunal to have proceeded to initiate the proceedings when on the face of the orders passed by the District Magistrate the representations of the claimants had been rejected on merits. 15. 14. In the background aforesaid and that the claimants have the option to challenge the orders passed against them we do not find any reason for the Tribunal to have proceeded to initiate the proceedings when on the face of the orders passed by the District Magistrate the representations of the claimants had been rejected on merits. 15. So far as the issue of maintainability of the appeal is concerned, once the contempt itself could not have been initiated as on 19.11.2012 when the orders of the Tribunal dated 19.1.2012 had been complied with, we see no further reason to keep this appeal pending as well. 16. The issue of maintainability of an appeal under Section 19 of the Contempt of Courts Act, 1971, particularly arising out of civil contempt matters, five decisions deserve to be noted: 1. 1994 (23) ALR 248, Vijay Krishan Goswami Vs. Suresh Chand Jain; 2. 2005 (7) SCC 40 , Modi Telefibres Ltd. and others Vs. Sujit Kumar Choudhary and others; 3. 2006 (5) SCC 399 , Midnapore Peoples' Coop. Bank Ltd. and others Vs. Chunilal Nanda and others; 4. 2000 (4) SCC 400 , R.N. Dey and others Vs. Bhagyabati Pramanik and others; and 5. 2014 Madras Law Journal Vol. 2, Pg. 513, H A Martin Vs. E D Charles 17. The aforesaid decisions indicate situations where an appeal would be maintainable even otherwise against orders in such proceedings even at the intermediary stage. 18. The Apex Court in another decision in the case of Sujitendra Nath Singh Roy Vs. State of West Bengal and others reported in JT 2015(3) SC 114 has held that appeal under Section 19 would be maintainable in an order passed relating to punishment but even otherwise if an appeal cannot be filed under Section 19 then too the High Court can entertain a writ petition under Article 226 of the Constitution of India against any intermediary order that may affect the rights of the parties. 19. In view of the reasons given hereinabove, the contempt proceedings drawn up by the Tribunal and the notices issued for framing charges under the order dated 19.11.2012 are hereby set aside and the appeals are accordingly disposed off without prejudice to the rights of the claimants to challenge the order passed by the Tribunal in their original claim petitions against them.