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2022 DIGILAW 351 (ALL)

Dinesh Kumar v. Alok Kumar Rai

2022-03-10

ALOK MATHUR

body2022
JUDGMENT : 1. Heard Sri Kaushlendra Tewari, learned counsel for applicant as well as Sri Anurag Kumar Singh and Sri Shashank Bhasin, learned counsel for respondents. 2. Learned counsel for applicant submits that by means of judgment dated 12.07.2021 passed in Writ Petition No. 1432 (SB) of 2015, this Court had decided the controversy pertaining to the Lucknow University taking into consideration the various statutes and rules applicable therein and thereafter came to a conclusion that the Executive Council does not have any power of review of their earlier decisions and on the basis of the said pronouncement of law proceeded to allow the said writ petition and granted benefits to the petitioners therein directing them to be treated as being substantially appointed on the post of Assistant Professor/Lecturer. 3. Learned counsel for respondents have raised a preliminary objection with regard to maintainability of the present contempt petition stating that the applicant was neither a party to the writ petitions decided by this Court vide judgment dated 12.07.2021 passed in Writ Petition No. 1432 (SB) of 2015 nor is he aggrieved or concerned or even remotely connected with the lis decided by this Court by the said judgment. Opposing the petition, it has been submitted that there is no averment or assertions by the applicant that the judgment dated 12.07.2021 passed in Writ Petition No. 1432 (SB) of 2015 was ever brought to the knowledge of the Executive Council so as to allege willful disobedience of the said order. 4. It has been stated that the petitioner is a stranger to the said writ proceedings and hence he has no locus to maintain the present contempt alleging non-compliance/disobedience of the judgment dated 12.07.2021. 5. Learned counsel for applicant on the other hand has submitted that once a question of law has been settled by the writ court then the University is bound by the said pronouncements and submits that the Executive Council in their meeting dated 31.07.2021 had in fact reviewed its earlier decision dated 20.08.2007 which was impermissible as per the pronouncement of this Court in writ petition No. 1432 (SB) of 2015 and hence has committed contempt of courts. He further submits that the judgment dated 12.07.2021 passed in Writ Petition No. 1432 (SB) of 2015 was a judgment in rem and was applicable to all persons and even to the non-participants or petitioners in the said case and hence the respondents have committed contempt while reviewing their earlier decisions. 6. He further submits that there is no necessity of the applicant for approaching this Court in exercise of Article 226 of the Constitution of India to assail the order of the Executive Council dated 31.07.2021 which ex-facie amounts to contempt and hence proceeding under the Contempt of Courts Act, 1971 would be maintainable. 7. I have heard learned counsel for parties and perused the judgment dated 12.07.2021 passed in Writ Petition No. 1432 (SB) of 2015. A perusal of the said judgment discloses that the same was specifically with regard to the petitioners therein who had assailed the orders of Executive Council specifically on the ground that Executive council does not have any power of reviewing its order. The Court after considering the provisions of U.P. State Universities Act, 1973 as well as statues of the University came to a conclusion that the Executive Council does not have any powers to review its decision and hence proceeded to quash the orders impeached therein and specific directions were issued to the petitioners therein granting benefits of the relief sought for in the petition. Before quashing the order of the executive council, the court had delved to the factual matrix of the case before the recording of finding that the executive council had in fact reviewed its earlier order. 8. The perusal of the judgment dated 12.07.2021 passed in Writ Petition No. 1432 (SB) of 2015 is very clear in terms and it is applicable to the persons who had invoked the writ jurisdiction of this Court. After reading entire judgment, it cannot be said that it was a judgment in rem considering that it was only the case of the petitioners which was considered in depth by the writ court while coming to the said conclusion. The applicant has urged that in the instant case ,subsequent decision taken by the Executive Council amounts to reviewing its earlier decisions which ex-facie amount to contempt. 9. The applicant has urged that in the instant case ,subsequent decision taken by the Executive Council amounts to reviewing its earlier decisions which ex-facie amount to contempt. 9. The scope and ambit of the jurisdiction of this Court under the contempt of Court act can be culled from the judgment of the Hon'ble Supreme Court in the case of Sudhir Vasudeva, Chairman & MD Vs. M. George Ravishekaran & others, delivered on 4th February, 2014 in Civil Appeal No. 1816 of 2014 the Supreme Court held as follows: "The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. 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 willful violation of the same. Decided issues cannot be reopened; nor the plea of equities can be considered. 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 vested in the Court, as noticed above. The above principles would appear to be the cumulative outcome of the precedents cited at the bar, namely, Jhareswar prasad Paul and Another Vs. The above principles would appear to be the cumulative outcome of the precedents cited at the bar, namely, Jhareswar prasad Paul and Another Vs. Tarak nath Ganguly and Others, V.M.Manohar Prasad vs. N. Ratnam Raju and Another, Bihar Finance Service House Construction Cooperative Society Ltd. Vs. Gautam Goswami and Others and Union of India and Others Vs. Subedar Devassy PV." 10. Before a Court punishes a contemner for non-compliance of a direction, the court must be satisfied that disobedience of the judgment, decree, direction or writ was willful or intentional. In Niyaj Mohammad Vs. State of Haryana, reported in 1994 (6) SCC 332 , the Bench of three learned Judges held thus: "Before a contemner is punished for non-compliance of the direction of a court, the court must not only be satisfied about the disobedience of any judgment, decree, direction or writ but should also be satisfied that such disobedience was willful and intentional. The civil court while executing a decree against the judgment debter is not concerned and bothered whether the disobedience to any judgment, or decree, was willful. Once a decree has been passed it is the duty of the court to execute the decree whatever may be consequence thereof. But while examining the grievance of the person who has invoked the jurisdiction of the court to initiate the proceeding for contempt for disobedience of its order, before any such contemner is held guilty and punished, the court has to record a finding that such disobedience was willful and intentional. If from the circumstances of a particular case, brought to the notice of the Court, the court is satisfied that although there has been a disobedience but such disobedience is the result of some compelling circumstances under which it was not possible for the contemner to comply with the order, the court may not punish the alleged contemner." 11. From the above discussion, this Court of the considered view that there is a clear distinction between a judgment laying down or settling any proposition of law which can be used as a precedent and a judgment which is passed inter parties which is binding between the parties to the dispute. From the above discussion, this Court of the considered view that there is a clear distinction between a judgment laying down or settling any proposition of law which can be used as a precedent and a judgment which is passed inter parties which is binding between the parties to the dispute. In case we were accepted the contention of learned counsel for applicant and entertain contempt proceeding on the premise that the decision taken by the Executive council is in willful disobedience of the judgment of this Court then there would be flood of cases where any individual would be at liberty to approach this Court in exercise of its contempt jurisdiction alleging disobedience of some or the other order of this Court passed in relation to similarly situated persons in similar circumstances and facts. 12. The contempt jurisdiction is a discretionary remedy which can be invoked by a person who is obliged to demonstrate that there is willful disobedience of the order of this Court. The decision of the Executive Council if assailed before writ court, it would open for the applicant to place reliance on the law laid down by the Court where the Executive Council cannot be permitted to review its earlier order and in support of its submission it was open for him to rely on the precedent set by this Court in its judgment dated 12.07.2021 passed in Writ Petition No. 1432 (SB) of 2015 in support of his claim. Merely because the judgment has been pronounced inter parties qua one set of facts it cannot be said that subsequently if any other similar order is passed, it would amount to contempt of Courts Act. Needless to say that a precedent can be distinguished on facts and may loose its strength as a precedent if established that it was a consent order, obiter dicta per-incuriam or sub-silentio. In case an order is passed contrary to the proposition of law enunciated by a Court then a person can assail the said order placing reliance on the previous order of the Court and only once the writ court after examining the order impugned therein is satisfied the same suffers from infirmity as alleged by the applicant can the said order be quashed. Without an authoritative pronouncement by the writ court, after examining the particular facts of the case resorting to proceeding under Contempt of Courts Act alleging willful disobedience amounting to contempt will generally not be accepted subject to same peculiar facts of a case where all the ingredients of Section 10/12 of Contempt of Courts Act are fulfilled. 13. From the discussion hereinabove, it is clear that to allege contempt it has to be demonstrated that there is a binding judgment between the parties that disobedience of which results in initiation of proceedings under the Contempt of Courts Act. 14. The apex court had considered this aspect of the matter in the case of Priya Gupta v. Ministry of Health & Family Welfare, (2013) 11 SCC 40, wherein it has been held as under:- "It is true that Section 12 of the Act contemplates disobedience of the orders of the court to be wilful and further that such violation has to be of a specific order or direction of the court. To contend that there cannot be an initiation of contempt proceedings where directions are of a general nature as it would not only be impracticable, but even impossible to regulate such orders of the court, is an argument which does not impress the court. As already noticed, the Constitution has placed upon the judiciary, the responsibility to interpret the law and ensure proper administration of justice. In carrying out these constitutional functions, the courts have to ensure that dignity of the court, process of court and respect for administration of justice is maintained. Violations which are likely to impinge upon the faith of the public in administration of justice and the court system must be punished, to prevent repetition of such behaviour and the adverse impact on public faith. With the development of law, the courts have issued directions and even spelt out in their judgments, certain guidelines, which are to be operative till proper legislations are enacted. The directions of the court which are to provide transparency in action and adherence to basic law and fair play must be enforced and obeyed by all concerned. With the development of law, the courts have issued directions and even spelt out in their judgments, certain guidelines, which are to be operative till proper legislations are enacted. The directions of the court which are to provide transparency in action and adherence to basic law and fair play must be enforced and obeyed by all concerned. The law declared by this Court whether in the form of a substantive judgment inter se a party or are directions of a general nature which are intended to achieve the constitutional goals of equality and equal opportunity must be adhered to and there cannot be an artificial distinction drawn in between such class of cases. Whichever class they may belong to, a contemnor cannot build an argument to the effect that the disobedience is of a general direction and not of a specific order issued inter se parties. Such distinction, if permitted, shall be opposed to the basic rule of law." 15. Determination of the lis between the parties is necessary prior to initiation of proceedings for contempt under the Contempt of Courts Act. Any attempt in taking cognizance of contempt relying upon the judgment passed in some other case would amount to stifling the respondents from distinguishing the applicability of the judgment from the facts of the case. At this stage we would hasten to add that all the authorities and courts are under a constitutional mandate to follow, abide and respect all the judicial decisions, and we do not, the least, mean that the authorities need not follow and abide by the judgments, but the issue at hand is as to whether merely not following a judgement of court passed on some other case, would amount to contempt of court. 16. In the present case, it has been alleged that the Executive Council had taken some decision on 20.08.2007 and they have re-appreciated the same facts in their meeting dated 31.07.2021. It may be possible that there may have been some change in circumstances, change in the rules and regulations or some other material consideration necessitating re-appreciating revisiting the earlier order, or the subsequent decision could be distinguishable from the previous decision or it may be now permissible under law are all questions of fact, the determination of which would be necessary before allegation of contempt can be levelled. Undoubtedly, the law having been down by this Court in the previous decision, that the executive Council would not have the power of the reviewing their decisions, would be a precedent and also liable be considered by the writ Court when examining the validity of the subsequent decision. 17. The peculiar fact of any case deserve to be appreciated by a writ court and only after determinative pronouncement that factual aspect in the case under consideration are similar, and hence applying the law laid down previously by the court would cover the case in the under consideration can result in setting aside of the impugned order. 18. The contempt proceeding by their very nature are summary proceedings. In case the argument of applicant is accepted then in exercise of contempt jurisdiction alleging disobedience of an order where the applicant is not party would necessary entail an in-depth determination of the dispute and also finding on the rights asserted by the applicant, which would be clearly beyond jurisdiction. 19. Considering the fact of the instant case ,it may be difficult to straightway conclude that the Executive Council had committed contempt of the earlier orders of the court without the fact being examined previously by any court. It has also not been stated that the order of the earlier writ court or ever brought to the knowledge of the Executive Council so as to substantiate the allegation that the Executive Council took the decision on 31.07.2021 in willful defiance of the earlier order of the writ court dated 12.07.2021. 20. Considering the aforesaid facts, this Court is of the considered view that the decision of the Executive Council may or may not be legal but does not amount to contempt as it does not fulfill condition set forth in Section 12 of the Contempt of Courts Act. To exercise the power under the Contempt of Courts Act specially with regard to civil contempt it has to be demonstrated that there exists a binding judgement of the court and even after service of the said judicial opinion on the respondents it has not been complied, pursuant to which this Court can initiate proceeding in exercise of power under Section 12 of the Contempt of Courts Act. Without there being binding decision in a matter between the parties, this Court cannot straightway proceed against respondents under the Contempt of Courts Act. Without there being binding decision in a matter between the parties, this Court cannot straightway proceed against respondents under the Contempt of Courts Act. The present proceedings raised by the applicant are clearly misconceived and an abuse of process of the court. It was always open for the applicant to approach the writ court and assail validity of the decision of the Executive Council and restoring to the proceedings under the Contempt of Courts Act and is nothing but abuse of the said process. 21. In light of the above, the contempt petition is dismissed with a cost of Rs. 500/-which shall be deposited in the Library Funds of Awadh Bar Association, Lucknow within two months from today.