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2016 DIGILAW 246 (HP)

Court on its own motion v. P. C. Dhiman

2016-03-15

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. On 23.04.2015, a Co-ordinate Bench of this Court drew contempt proceedings against the respondents for having, prima facie, violated the orders passed by this Court on 18.02.2015. 2. The factual matrix giving rise to this petition is that one Sunita Pandey along with two other petitioners (hereinafter referred to as the writ petitioners) filed CWP No. 1259 of 2015 before this Court wherein it was averred that they came to be appointed as Lecturers in the subject of psychology pursuant to the policy framed by the Government and commonly known as “Para Teachers Policy, 2003”. 3. A policy was framed by the Government to regularize the services of those Para Teachers, who had completed uninterrupted service of 10 years vide Office Order dated 18.12.2014. Pursuant to such order, as many as 439 Para Teachers came to be regularized as PGTs. The names of the writ petitioners did not figure in the aforesaid order dated 18.12.2014. However, a subsequent notification was issued on 03.01.2015 wherein it was stated that the Lecturers in the subjects of Psychology/Electronics and Home Science would be offered appointment as TGTs and not PGTs since these had been declared as dying cadre. 4. On 15.01.2015, the respondents issued another notification whereby the PTA Teachers in the subject of Home Science were offered the post of PGT. On 19.01.2015, another notification was issued whereby the services of the writ petitioners came to be regularized as TGTs. It was against the aforesaid notifications whereby the writ petitioners had been appointed as TGTs and not PGTs that CWP No. 1259 of 2015 came to be filed by them. Along with the writ petition, an application for interim relief was also filed and operative portion of the prayer clause reads as under:- “It is, therefore, respectfully prayed that this application may kindly be allowed and during the pendency of the writ petition, non applicants respondents may kindly be directed to direct the Principals of the concerned schools/DIETs where the applicants were performing their duties to allow the applicants to perform their duties as PGTs, Psychology and further to pay salary and emoluments to the applicants as is paid to the other PGTs who have been regularized vide annexure P-1 dated 18.12.2014, in the interest of justice.” 5. The petition came up for consideration on 18.02.2015 and this Court passed the following orders:- “CMP No. 2053/2015 Allowed and disposed of CWP No. 1259/2015 & CMP No. 2054/2015 Notice. Mr. M.A. Khan, Additional Advocate General, appears and waives service of notice on behalf of the respondent-State. He prays for and is granted eight weeks’ time to file reply. Till further orders, petitioners are permitted to work as PGT’s and shall also be entitled to the salary of the post of PGT.” 6. The mater thereafter came up for consideration on 09.04.2015 and the Court passed the following orders:- “Mr. Anup Rattan, learned Additional Advocate General has placed on record copy of letter dated 12.3.2015. This letter is in derogation of the directions issued by this Court on 18.2.2015. Mr. Anup Rattan, learned Additional Advocate General prays for and is granted a week’s time to seek instructions. List next week. In the meantime, it shall be open to the respondent- State to redress the grievances of the petitioner by granting him the pay scale of post graduate teacher.” 7. Subsequently, when the matter came up for consideration on 23.04.2015, this Court proceeded to draw contempt proceedings against the respondents by passing the following orders:- “The order dated 18.2.2015 has not been complied with by the respondents. The learned Additional Advocate General was permitted to seek instructions on 9.4.2015 and 22.4.2015. The order dated 18.2.2015 ought to have been complied with, more particularly, when till date no reply has been filed. In view of above, registry is directed to draw separate contempt proceedings against all the three respondents and assign number thereof. Notice to the respondents why contempt proceedings be not initiated for willfully disobeying the order dated 18.2.2015, returnable on 15.5.2015.” 8. On 18.05.2015 the respondents through the learned Deputy Advocate General informed this Court that they had complied with the directions passed on 18.02.2015 and the contempt petition was accordingly disposed of. 9. The writ petitioners on coming to know that the contempt petition had been disposed of on the basis of the statement on behalf of the respondents, thereafter filed an application being CMP No. 11068/2015 for reviving the contempt petition, as according to them, the respondents despite assurances were still continuing with the contemptuous action and had in fact not implemented the order dated 18.02.2015 by paying them the salary of PGTs as had been ordered. 10. 10. The application was taken on board and the respondents were called upon to file their replies wherein they repeatedly maintained that the orders passed by this Court have been implemented. 11. However, when the matter came up for consideration before this Court on 02.01.2016, it was fairly conceded by the respondents that since the issue involved in this lis was already the subject-matter in SLP No.1426/2015 arising out of judgment rendered by this Court in CWP No. 6916/2011 and order of status quo had been granted by the Hon’ble Supreme Court vide order dated 22.01.2015, therefore, the respondents were not in a position to comply with the orders passed by this Court on 18.02.2015. 12. In this background, the question arises as to whether the respondents by not implementing the orders passed by this Court on 18.02.2015 in view of the orders passed by the Hon’ble Supreme Court earlier on 22.01.2015 in SLP No. 1426/2015 can be said to have committed the contempt of the orders passed by this Court. We have heard the learned counsel for the parties and have gone through the records of the case. 13. The scope, ambit and purpose of exercising jurisdiction under the Contempt of Courts Act has been noticed by this Bench in a recent case titled ‘Uma Dutt Vs. Srikant Baldi and others’ (COPC No. 753/2015, decided on 09.12.2015) in the following manner:- “9. While it is duty of the Court to punish a person who tries to obstruct the course of justice or brings to disrepute the institution of judiciary. However, this power has to be exercised not casually or lightly, but with great care and circumspection. Contempt proceedings serve a dual purpose of vindication of the public interest by punishment of the contumacious conduct and coercion to compel the contemner to do what the law requires of him. 10. A question whether there is contempt of Court or not is a serious one. The Court is both the accuser as well as the judge of the accusation. It behoves the Court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in Courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemnor must be punished. It behoves the Court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in Courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemnor must be punished. Punishment under the law of Contempt is called for when the lapse is deliberate and in disregard of one’s duty and in defiance of authority. 11. While dealing with the contempt petitions, the Courts are not required to travel beyond the four corners of order, which is alleged to have been disobeyed or disregarded deliberately and willfully. In this connection, it shall be apposite to make a fruitful recapitulation of a recent judgment of the Hon’ble Supreme Court in Ram Kishan Vs. Tarun Bajaj and others 2014 AIR SCW 1218, wherein it was held that:- “9. Contempt jurisdiction conferred onto the law courts power to punish an offender for his willful disobedience/contumacious conduct or obstruction to the majesty of law, for the reason that respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizens that his rights shall be protected and the entire democratic fabric of the society will crumble down if the respect of the judiciary is undermined. Undoubtedly, the contempt jurisdiction is a powerful weapon in the hands of the courts of law but that by itself operates as a string of caution and unless, thus, otherwise satisfied beyond reasonable doubt, it would neither fair nor reasonable for the law courts to exercise jurisdiction under the Act. The proceedings are quasi- criminal in nature, and therefore, standard of proof required in these proceedings is beyond all reasonable doubt. It would rather be hazardous to impose sentence for contempt on the authorities in exercise of contempt jurisdiction on mere probabilities. (Vide: V.G. Nigam & Ors. v. Kedar Nath Gupta & Anr., AIR 1992 SC 2153 ; Chhotu Ram v. Urvashi Gulati & Anr., AIR 2001 SC 3468; Anil Ratan Sarkar & Ors. v. Hirak Ghosh & Ors., AIR 2002 SC 1405 ; Bank of Baroda v. Sadruddin Hasan Daya & Anr., AIR 2004 SC 942; Sahdeo alias Sahdeo Singh v. State of U.P. & Ors., (2010) 3 SCC 705 ; and National Fertilizers Ltd. v. Tuncay Alankus & Anr., AIR 2013 SC 1299 ). 10. v. Hirak Ghosh & Ors., AIR 2002 SC 1405 ; Bank of Baroda v. Sadruddin Hasan Daya & Anr., AIR 2004 SC 942; Sahdeo alias Sahdeo Singh v. State of U.P. & Ors., (2010) 3 SCC 705 ; and National Fertilizers Ltd. v. Tuncay Alankus & Anr., AIR 2013 SC 1299 ). 10. Thus, in order to punish a contemnor, it has to be established that disobedience of the order is willful. The word willful introduces a mental element and hence, requires looking into the mind of person/contemnor by gauging his actions, which is an indication of ones state of mind. Willful means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing there from. It excludes casual, accidental, bonafide or unintentional acts or genuine inability. Willful acts does not encompass involuntarily or negligent actions. The act has to be done with a bad purpose or without justifiable excuse or stubbornly, obstinately or perversely. Willful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished. Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct. (Vide: S. Sundaram Pillai, etc. v. V.R. Pattabiraman; AIR 1985 SC 582 ; Rakapalli Raja Rama Gopala Rao v. Naragani Govinda Sehararao & Anr., AIR 1989 SC 2185 ; Niaz Mohammad & Ors. etc.etc. v. State of Haryana & Ors., AIR 1995 SC 308 ; Chordia Automobiles v. S. Moosa, AIR 2000 SC 1880 ; M/s. Ashok Paper Kamgar Union & Ors. v. Dharam Godha & Ors., AIR 2004 SC 105 ; State of Orissa & Ors. v. Md. Illiyas, AIR 2006 SC 258 ; and Uniworth Textiles Ltd. v. CCE, Raipur, (2013) 9 SCC 753 ). 11. In Lt. Col. v. Dharam Godha & Ors., AIR 2004 SC 105 ; State of Orissa & Ors. v. Md. Illiyas, AIR 2006 SC 258 ; and Uniworth Textiles Ltd. v. CCE, Raipur, (2013) 9 SCC 753 ). 11. In Lt. Col. K.D. Gupta v. Union of India & Anr., AIR 1989 SC 2071 , this Court dealt with a case wherein direction was issued to the Union of India to pay the amount of Rs. 4 lakhs to the applicant therein and release him from defence service. The said amount was paid to the applicant after deducting the income tax payable on the said amount. While dealing with the contempt application, this Court held that withholding the amount cannot be held to be either malafide or was there any scope to impute that the respondents intended to violate the direction of this Court. 12. In Mrityunjoy Das & Anr. v. Sayed Hasibur Rahaman & Ors., AIR 2001 SC 1293 , the Court while dealing with the issue whether a doubt persisted as to the applicability of the order of this Court to complainants held that it would not give rise to a contempt petition. The court was dealing with a case wherein the statutory authorities had come to the conclusion that the order of this court was not applicable to the said complainants while dealing with the case under the provision of West Bengal Land Reforms Act, 1955. 13. It is well settled principle of law that if two interpretations are possible, and if the action is not contumacious, a contempt proceeding would not be maintainable. The effect and purport of the order is to be taken into consideration and the same must be read in its entirety. Therefore, the element of willingness is an indispensable requirement to bring home the charge with in the meaning of the Act. (See: Sushila Raje Holkar v. Anil Kak (Retd.), AIR 2008 (Supp-2) SC 1837; and Three Cheers Entertainment Pvt. Ltd. & Ors. v. C.E.S.C. Ltd., AIR 2009 SC 735 ): (2008 AIR SCW 7951).” Similar view has been taken by this Bench in Contempt Petition No. 415 of 2014, Rulda Ram Vs. Rakesh Kanwar, decided on 28th February, 2015.” 14. (See: Sushila Raje Holkar v. Anil Kak (Retd.), AIR 2008 (Supp-2) SC 1837; and Three Cheers Entertainment Pvt. Ltd. & Ors. v. C.E.S.C. Ltd., AIR 2009 SC 735 ): (2008 AIR SCW 7951).” Similar view has been taken by this Bench in Contempt Petition No. 415 of 2014, Rulda Ram Vs. Rakesh Kanwar, decided on 28th February, 2015.” 14. At the outset, it may be stated that this Court does not at all approve the manner in which the respondents have proceeded in the matter, yet it cannot be held that the respondents have deliberately, willfully and intentionally violated the orders passed by this Court on 18.02.2015. No doubt, in case the respondents had any difficulty in implementing the order dated 18.02.2015, they then should have approached this Court, rather than, repeatedly insisting that the orders passed by this Court had been implemented. 15. However, at the same time, even the writ petitioners cannot claim that the orders passed by the Hon’ble Supreme Court in Pankaj Kumar’s case (supra) have no bearing to the instant case because admittedly the instructions issued by the Government on 06.08.2013 thereby regularizing the services of Lecturers School Cadre (Para Teachers) on completion of 10 years had in-fact been assailed by Pankaj Kumar by filing CWP No.6916/2011 and this Court vide its interim order dated 18.10.2013 had stayed the regularization of Para Teachers. It is only after the dismissal of the writ petition that the Education Department had once again commenced the process to regularize the services of the Para Teachers, but the subjects of Psychology and Philosophy were declared as dying cadre and the Para Teachers, who were teaching these subjects were to be offered appointment as TGTs. It is also not in dispute that the above decision rendered by this Court was assailed before the Hon’ble Supreme Court by filing SLP(C) No.1426/2015 in case titled ‘Pankaj Kumar Versus State of H.P., wherein the Hon’ble Supreme Court vide order dated 22.01.2015 directed the maintenance of status quo till the orders to the contrary. 16. Furthermore, the bonafides of the respondents are established to a great extent when they themselves did not take the decision but obtained legal advice from the Law Department, who opined as under:- “Examined in the Law Deptt. Perusal of the record shows that the process of regularization of PTA/Para teachers stated as per the judgment of HHC dt. 16. Furthermore, the bonafides of the respondents are established to a great extent when they themselves did not take the decision but obtained legal advice from the Law Department, who opined as under:- “Examined in the Law Deptt. Perusal of the record shows that the process of regularization of PTA/Para teachers stated as per the judgment of HHC dt. 9-12-2014 in CWP No.6916/2011 has been stayed by the Hon’ble Apex Court vide their interim order passed on 22. 1.2015 in the SLP filed against the judgment of HHC in CWP No.6916/2011 filed by Mr. Pankaj Kumar by directing that “status quo be maintained till orders to the contrary”, and in the CWP No.1259/2015 titled Sunita Pandey and Ors V/s State of H.P., the Hon’ble High Court has passed an interim order dated 18.2.2015 directing that ‘Till further orders, petitioners are permitted to work as PGTs and shall also entitled to the salary of the post of PGT.” Thus the interim orders of HHC are very clear and the petitioners in question are entitled to the salary which they were getting earlier as PGT Para Teachers.” 17. Undoubtedly, no person can defy the Court’s order, however, the default must be willful and deliberate. Willful would exclude casual, accidental, bonafide or unintentional acts or genuine inability to comply with the terms of the order. For holding the respondents to have committed contempt, it has to be shown that there is willful disobedience of the judgment or orders of the Court. Power to punish for contempt is to be resorted to only when there is clear violation of the Court’s order. Since notice of contempt and punishment for contempt is of far reaching consequence, these powers have to be invoked only when a clear case of willful disobedience of the Court’s order is made out. Whether disobedience is willful in a particular case depends on the facts and circumstances of that case. It is not to say that even negligence and carelessness cannot amount to disobedience, particularly, when the attention of the person is drawn to the Court’s order alongwith its implication. 18. Whether disobedience is willful in a particular case depends on the facts and circumstances of that case. It is not to say that even negligence and carelessness cannot amount to disobedience, particularly, when the attention of the person is drawn to the Court’s order alongwith its implication. 18. However, here the Court is dealing with a case where even the petitioners do not dispute that they would ultimately succeed in their claim only if the decision of the Government to regularize the services of the Lecturers School Cadre (Para Teachers) is upheld by the Hon’ble Supreme Court and they are granted parity alongwith said teachers. It is also not in dispute that the claim regarding regularization of these Para Teachers is not only sub-judice, but a direction to maintain status quo till the orders to the contrary has been passed by the Hon’ble Supreme Court earlier on 22.01.2015 than the order passed by this Court on 18.02.2015. 19. In view of the aforesaid discussion, though we do not approve the manner in which the respondents have conducted themselves, but, at the same time, we find no reason to continue with these proceedings. The respondents are warned to be careful in future. Accordingly, the proceedings initiated by this Court on 03.11.2015 in CMP No.11068/2015 are dropped and the show cause notice issued to the respondents is discharged. The application is dismissed, leaving the parties to bear their own costs.