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2022 DIGILAW 1758 (ALL)

Amalendu Chandra v. Prof. Rajiv Shekhar

2022-11-10

MANOJ MISRA, VIKAS BUDHWAR

body2022
JUDGMENT : 1. Heard Sri Manish Goyal, learned senior counsel, assisted by Sri Rohan Gupta, for the appellants and Sri Ashok Khare, learned senior counsel, assisted by Sri Avneesh Tripathi, for the respondent. 2. This intra court appeal under Chapter VIII Rule 5 of the High Court Rules is against the order dated 21.10.2022 passed by the learned Single Judge in Contempt Application (Civil) No. 5669 of 2022. The operative portion of the order dated 21.10.2022 with which the appellants are aggrieved is extracted below:- "This Court directs the opposite party to file an affidavit before this Court within three weeks complying with the order of Writ Court in granting of HAG scale which was subject to decision of writ petition. In case of failure, the opposite party shall remain present in the Court on 06.12.2022." 3. The case of the appellant is that they were opposite parties in Contempt Application (Civil) No. 5669 of 2022 filed by the respondent alleging violation of court's order dated 19.10.2019 in Writ A No. 16060 of 2019; that the order dated 19.10.2019 nowhere mandates grant of HAG scale to the writ petitioner; and, therefore, the learned Single Judge exercising contempt jurisdiction exceeded its jurisdiction by issuing a direction as if it were a writ court. It is thus prayed that the order of the learned Single Judge be quashed. With regard to the maintainability of the intra court appeal, it is submitted that the impugned direction is beyond the scope of the order of which wilful disobedience is alleged hence, the intra court appeal is maintainable in light of Supreme Court decision in Midnapore Peoples Coop. Bank Ltd. v. Chunilal Nanda, (2006) 5 SCC 399 . 4. The learned counsel for the respondent submits that the natural consequence of the interim order dated 19.10.2019 passed in Writ A No. 16060 of 2019 would be that the writ petitioner (the respondent herein) would be entitled to the benefit of HAG scale therefore, denial of such benefit amounts to wilful disobedience of the writ court's order, as a result whereof, the learned Single Judge while exercising contempt jurisdiction is well within its jurisdiction to direct for grant of HAG scale. Consequently, the order impugned is not liable to be interfered with. 5. Consequently, the order impugned is not liable to be interfered with. 5. To have a clear understanding of the issues that arise for our consideration in this appeal, a glimpse at the relevant facts would be apposite. These are as follows:- (i) The respondent, that is, the contempt-applicant in Contempt Application (Civil) No.56669 of 2022 is the writ petitioner, who filed Writ A No.16060 of 2019. He was facing an enquiry in respect of certain allegations concerning harassment of an appointee under the Scheduled Caste quota. During that enquiry, in exercise of the powers conferred under Section 17(1) of the Institutes of Technology Act, 1961 read with Clause 15(3) of the Statutes of older IIT's, the President of India, in his capacity as a Visitor of the Indian Institute of Technology (Indian School of Mines), Dhanbad approved appointment of the writ petitioner (the respondent herein) as Director of IIT (ISM), Dhanbad. As the proceedings pending/ proposed against the writ petitioner were in respect of his conduct as Professor, Department of Material Science and Engineering, IIT, Kanpur, he being appointed as Director of IIT (ISM), Dhanbad by order of the Visitor, a question arose as to whether those proceedings could continue without approval of the Visitor. The concerned ministry, however, conveyed vide letter dated August 23, 2019 that the matter may be resolved at the level of IIT Council. Questioning this letter dated August 23, 2019 and the memorandum proposing punishment, the respondent herein i.e. the writ petitioner filed Writ A No. 16060 of 2019. In this writ proceeding, on 19.10.2019, following order was passed:- "Heard Shri G.K. Singh, learned Senior Counsel assisted by Shri Avneesh Tipathi, learned counsel for the petitioner, Shri Rohan Gupta, learned counsel appearing for the second & third respondent and Shri Shabhajeet Singh, learned counsel appearing for the Union of India. All the respondents shall file counter affidavit within four weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter. List thereafter before appropriate Bench. It shall not be treated as tied up or part heard to this Bench. Petitioner is presently posted as Director, Indian Institute of Technology, (Indian School of Mines), Dhanbad. All the respondents shall file counter affidavit within four weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter. List thereafter before appropriate Bench. It shall not be treated as tied up or part heard to this Bench. Petitioner is presently posted as Director, Indian Institute of Technology, (Indian School of Mines), Dhanbad. The instant petition is directed against the order dated 23 August 2019 passed by the first respondent-Secretary, Ministry of Human Resources & Development, New Delhi, whereby, the Chairman, IIT Council who happens to be Hon'ble Minister of Human Resources & Development has conveyed his approval for proceeding against the petitioner. On specific query, learned counsels appearing for the first and third respondent submit that till date approval pursuant to the directions of the Hon'ble Visitor, has not been obtained from the IIT Council. It is urged that matter is yet to be placed before the Council. In view thereof, learned counsel for the second and third respondent, on instructions, submits that without seeking view/opinion of the Ministry of Human Resources & Development, New Delhi, in terms of the direction of the Hon'ble Visitor, the second respondent-Registrar, Indian Institute of Technology, Kanpur, would keep the matter in abeyance. The undertaking is recorded and accepted. In view thereof, no order is required to be passed on the stay application at this stage." (ii) By alleging that consequent to his appointment as Director, IIT (ISM), Dhanbad, the respondent (Prof. Rajiv Shekhar) was entitled to HAG scale; whereas, its payment was withheld on account of impending disciplinary proceeding against him, which were kept in abeyance by the undertaking recorded in the order dated 19.10.2019 and, till date, approval of the Visitor or consent of IIT Council was not obtained, Contempt Application (Civil) No. 5669 of 2022 was filed by claiming that denial of HAG scale amounts to violation of the undertaking recorded on 19.10.2019. (iii) It is in this background, the learned Single Judge entertained the contempt proceeding and issued the impugned direction dated 21.10.2022, after recording its reasons, which are extracted below:- “After hearing learned counsel for respective parties, this Court finds that opposite party was not justified in issuing the letter dated 08.08.2022 withholding the grant of HAG scale to the applicant once the writ Court had kept the proceedings in abeyance subject to the opinion of the Ministry of Human Resources & Development, New Delhi in terms of direction of Hon’ble Visitor. As the Hon’ble Visitor had declined to interfere in the matter and relegated the same to the IIT Council and IIT Council has not taken any unanimous decision in the proceedings against the applicant for initiating the proceedings, the unilateral decision of the Chairman, IIT Council cannot be made basis for withholding the grant of HAG scale to the applicant.” 6. The contention of the learned counsel for the petitioner is that the direction issued, vide order dated 21.10.2022, is, firstly, beyond the scope of the writ petition as well as writ court's order dated 19.10.2019 as there was no prayer for HAG scale in the writ petition moreover the order dated 19.10.2019 does not at all deal with the admissibility of HAG scale to the writ petitioner (contempt-applicant / respondent herein) and, secondly, the contempt court could not have acted as a writ court as to issue directions in respect of a cause of action which was not within the scope of the writ proceeding. It has been contended that in the writ petition the prayer was limited to quashing the order dated 23.08.2019, whereby the approval of Minister of Human Resource Department for proceeding against the writ petitioner (i.e. the respondent herein) was conveyed; and to quash the memorandum proposing a penalty upon the writ petitioner. It was urged that in these circumstances the order of the learned Single Judge, while exercising contempt jurisdiction, was in excess of its jurisdiction and, therefore, liable to be set aside. 7. It was urged that in these circumstances the order of the learned Single Judge, while exercising contempt jurisdiction, was in excess of its jurisdiction and, therefore, liable to be set aside. 7. Sri Ashok Khare, who appears for the respondent, submitted that although there may not be a clear direction of the writ court for payment of HAG scale but the payment of HAG scale is a natural consequence of appointment as a Director and since it has been withheld because of the impending disciplinary proceeding which was put in abeyance vide undertaking given to the writ court dated 19.10.2019, the act of withholding the same amounted to violating the undertaking, therefore, while exercising contempt jurisdiction, the learned Single Judge was well within its jurisdiction in issuing such directions which were necessary to enforce writ court’s order. He, therefore, submits that the order of the learned Single Judge calls for no interference. 8. We have accorded consideration to the rival submissions and have also noticed the relevant facts of the case for the purposes of deciding this intra court appeal. Before we proceed further, it would be useful to address the issue with regard to maintainability of the intra court appeal under the High Court Rules against an order passed by a learned Singe Judge in contempt jurisdiction. In this regard we may observe that in Midnapore’s case (supra), the apex court in respect of maintainability of an intra court appeal against orders in contempt proceedings, in paragraph 11 (V), observed: “If the High Court, for whatever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases).” In light of the decision noticed above, as the impugned order of the learned Single Judge amounts to a direction as a writ court and there exists right of an intra court appeal under the Rules of the Court, in our view, the intra court appeal is maintainable. 9. 9. At this stage, it would be useful to notice the law as to what extent the court exercising contempt jurisdiction can interpret the order of which violation is alleged and issue directions. In Jhareshwar Prasad Paul v. Tarak Nath Ganguly, (2002) 5 SCC 352 , in paragraph 11, the Supreme Court observed: “The court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the applicant. The court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. …… If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein it will be better to direct the parties to approach the court which disposed of the matter for clarification of the order instead of the court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the court passing the judgment and order.” 10. Similar view has been reiterated by a three-judge bench of the Supreme Court in Sudhir Vasudeva, Chairman & Managing Director, Oil And Natural Gas Corporation Ltd. & others v. M. George Ravishekaran & others, (2014) 3 SCC 373 , wherein, in paragraph 19, it was observed: “The 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 wilful violation of the same. …..The 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.” 11. 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.” 11. From the law noticed above, it is clear that while exercising contempt jurisdiction, the court must not travel beyond the four corners of the order of which violation is alleged and it should not enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein it will be better to direct the parties to approach the court which disposed of the matter for clarification of the order instead of the court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the court passing the judgment and order. 12. In light of the law noticed above, we now proceed to examine whether while issuing the impugned direction, the learned Single Judge exceeded its jurisdiction as a contempt court. In the instant case, on the basis of facts noticed above, we find that the writ petitioner (Prof. Rajiv Shekhar) had filed Writ A No. 16060 of 2019 for the limited relief of quashing the letter dated 23rd August 2019 conveying that approval for disciplinary proceeding against the writ petitioner may be obtained at the level of IIT Council. The writ petitioner also prayed for quashing the memorandum by which a penalty was proposed against him. There was no prayer in the writ petition with regard to emoluments payable to him as an appointee on the post of Director. The order dated 19.10.2019 recording the undertaking of the counsel representing the respondents in Writ A No. 16060 of 2019 is only in respect of putting those impending proceeding in abeyance. The scope of a writ petition is ordinarily determined by the prayer made therein. In such circumstances, the undertaking recorded in the order dated 19.10.2019, in our view, could not have been interpreted as an undertaking to the effect that all the emoluments that are attached to the post of Director shall be admissible to the writ petitioner particularly, when there was no such prayer in the writ petition. In such circumstances, the undertaking recorded in the order dated 19.10.2019, in our view, could not have been interpreted as an undertaking to the effect that all the emoluments that are attached to the post of Director shall be admissible to the writ petitioner particularly, when there was no such prayer in the writ petition. In such view of the matter and in light of the judicial precedents noticed above, governing the scope of contempt jurisdiction, we are of the considered view that the direction of the learned Single Judge, vide order dated 21.10.2022, requiring the respondents to grant HAG scale in compliance of the writ court order and, on failure to do so, to appear before the contempt court, is beyond the scope of the order of the writ court of which contempt was alleged and is, therefore, liable to be set aside. The appeal is allowed. The direction to the extent indicated above is set aside. 13. It is clarified that our order will not preclude the respondent (Prof. Rajiv Shekhar) to move an appropriate application either in the pending writ petition or to file a fresh writ petition in respect of grant of HAG scale as has been claimed by him in the contempt jurisdiction.