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2016 DIGILAW 449 (JK)

Dave Latta v. Hamidullah Dar

2016-09-05

MOHAMMAD YAQOOB MIR, N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : Yaqoob, J. 1. Order dated 2nd August, 2016, passed in pending contempt proceedings, is assailed by medium of this Appeal under Clause 12 of the Letters Patent. 2. Confronted with the non-maintainability of the appeal, learned AAG would submit that the direction issued vide order impugned is in-consistent with what has been decided vide judgment dated 31.12.2014 rendered in SWP No.487/2009, therefore, such an order is open to be challenged by medium of Letters Patent Appeal. Supporting this contention placed reliance on the judgment rendered by the Hon’ble Apex Court in the case of Union of India and others Vs. Subedar Devassy PV, (2006) 1 SCC 613 . 3. In the reported judgment it has been opined that it would not be permissible for a court to examine the correctness of the earlier decision which had not been assailed and to take a view different from what was taken in the earlier decision. It has also been also opined that the court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment or order. Further it has been opined that the court exercising contempt jurisdiction cannot take upon itself the power to decide the original proceedings in a manner not dealt with by the court passing the judgment or order”. 4. In Para 6 of the reported judgment it has also been opined that rightness or wrongness of the order cannot be urged in the contempt proceedings. Flouting an order of the court would render the party liable for contempt. While dealing with an application for contempt, the court cannot traverse beyond the order, non-compliance with which is alleged. In other words, it cannot say what should not have been done or what should have been done. 5. Applying the law, as has been laid down in the reported judgment, to the facts of the present case, it becomes clear that the direction issued by the Court while dealing with the contempt proceedings pursuant to the order impugned is not in any manner in conflict with the judgment, non-compliance of which is alleged. 6. Vide judgment dated 31.12.2014 rendered in SWP No.487/2009 non-compliance of which is alleged, in the factual and legal background, Board was directed to delete 23 questions out of 120 questions. 6. Vide judgment dated 31.12.2014 rendered in SWP No.487/2009 non-compliance of which is alleged, in the factual and legal background, Board was directed to delete 23 questions out of 120 questions. Then on the basis of performance of the petitioners taking question paper to be comprised of 97 questions, the respondent Board to evaluate performance of petitioners or in alternative if it shall be impossible for the respondents for any valid reason or reasons beyond their control to embark on such exercise, then they would be free to appoint the petitioners against available vacancies of Naib-Tehsildars in direct recruitment quota in accordance with rules. Elucidating the said position in Para 33 of the said judgment, it has been made clear that the Board shall delete 23 questions from the question paper and thereafter to assess and evaluate performance of the petitioners as if paper question comprised of 97 questions, thereafter Board shall prepare category wise merit list, redraw the select list and recommend the candidates on the basis of merit for appointment as Naib Tehsildars. 7. Perusal of the record suggest that the Board had shown disability to undertake the exercise of evaluation and had suggested that the petitioners could be appointed so as to avoid complicacy and any further litigation. The said suggestion had been agreed to by the concerned authorities but later on same was not carried into effect. During pendency of contempt proceedings, the appellants filed a status report stating therein that they had undertaken the exercise but after evaluation petitioners could not make the grade, therefore, judgment is complied with. 8. Considering the position projected by the appellants, the Court while dealing with the contempt proceedings traced precisely the history of the case and then in Para 38 of the judgment observed as under: “38. In the face of such a factual and circumstantial scenario, legally a Court is left with no alternative, but to conclude and hold the respondents guilty of contempt and post the matter for hearing on the quantum of punishment. But I hope that, in this case, the respondents will do the needful, implement the judgment as suggested by none other than the Law Minister/Law Department/learned Advocate General and avert the situation reaching to the above stage.” 9. But I hope that, in this case, the respondents will do the needful, implement the judgment as suggested by none other than the Law Minister/Law Department/learned Advocate General and avert the situation reaching to the above stage.” 9. In Para 39 of the order impugned it has been observed as under: “affording another opportunity to the respondents to implement the judgment in its letter and spirit keeping in view the fact that they have expressly, impliedly and by their conduct long before waived of the option to redraw the merit list of the petitioners and the private respondents in the writ petition and pass necessary order in that behalf.” After observing as above, contempt petition has been ordered to be listed again. 10. What the learned Court has observed in the contempt proceedings as referred to above is not something inconsistent with the judgment. Instead whatever has been observed is in tune with the judgment violation of which is alleged. Learned Single Judge has not passed any direction inconsistent with the judgment violation of which is claimed nor has adjudicated upon any issue not dealt with in the judgment. Whatever has been observed is consistent with the judgment, therefore, no cause for filing the instant Letters Patent Appeal. 11. Learned AAG would next contend that, in-effect, plain reading of Para 38 and 39 of the order impugned suggest that a warning has been issued which amounts to punishment against which appeal under Section 19 of the Contempt of Courts Act can be maintained. In support of this contention placed reliance on the judgment delivered by the Hon’ble High Court of Madras captioned Mrs. Shobhana Radhakrishnan and anr. Vs. R. Krishnamoorthy, AIR 2008 Mad. 103. The argument is misplaced because learned Single Judge has not issued any warning but has simply observed what is the actual position so as to awake the appellants. In the reported judgment while closing the contempt proceedings, a warning had been issued. As against that, appeal was preferred under Section 19 of the Contempt of Court’s Acts. An objection was raised that warning does not amount to punishment, when it is so, appeal cannot be maintained. In the reported judgment in the background of its facts and more particularly in view of closure of contempt proceedings warning as was issued was held to be a punishment. 12. An objection was raised that warning does not amount to punishment, when it is so, appeal cannot be maintained. In the reported judgment in the background of its facts and more particularly in view of closure of contempt proceedings warning as was issued was held to be a punishment. 12. In the instant case, contempt proceedings are still to be finalized. No warning at all has been issued which, in any way, would affect rights of the appellants. Therefore, there is no question of punishment in any manner to have been awarded. 13. Learned AAG as a last ditch effort projected that in SWP No.487/2009 was filed by seven petitioners, later on number of petitions have been filed by large number of candidates. The total number of petitioners is much more than number of posts as were available. The appellants, therefore, had no option but to undertake the exercise of evaluation as was directed vide judgment violation of which is claimed, as such, there is no question of non-compliance of the judgment. 14. The grounds projected may be the defences available to the appellants which they may still project before the Court dealing with the contempt proceedings. Appeal under Section 19 of the Contempt of Court’s Act will lie only when a punishment is awarded. It is only thereafter such grounds can be looked into by the Appellate Court. At present it is for the appellants to project the same before the Court dealing with the contempt proceedings. 15. For the stated reasons and facts, neither Letters Patent Appeal as has been filed is maintainable nor it can be treated as an appeal under Section 19 of the Contempt of Court’s Act in view of the fact that any type of punishment as yet has not been awarded. It is only after punishment for contempt of Court is awarded, appeal can be maintained under Section 19 of the Contempt of Court’s Act. 16. Viewed thus, appeal being not maintainable is dismissed. The connected contempt petitions be listed before the said Court.