IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.10032 of 2009
DR.DHARAM SHEELA PRASAD & ORS .
Versus
THE CHANCELLOR OF UNIVERSITY OF BIHAR & ORS .
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09 13.09.2010 On 18.08.2009 the three petitioners filed the
present writ application being C.W.J.C. No.10032 of 2009. Two
of the petitioners are University Professors and the third is
Reader. They are in different constituent Colleges of Patna
University. Their grievance, inter alia, was that having served
the University for two decades or more, they are now being
noticed as to why their initial appointment dates be not shifted.
The consequence whereof would be that not only they would be
demoted from the post of University Professors to Readers and
Readers to Lecturers, which promotional post they were holding
for quite some time, having been granted those promotions by
the University in accordance with law, but they would also have
to face substantial reduction in their emoluments and refund
substantial amounts, even though, they were never at fault at any
stage. Their appointments and promotions had the sanction of
statutory committees & authorities. It may be noted here that
apparently such notices had been issued to large number of
Teachers not only in this University but other Universities of
Bihar as well. In some cases demotion orders, recovery from
salary and reduction in pay scale had already been ordered in
respect of Teachers including those who had retired long back.
The matter was taken up for admission on 07.09.2009 when
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Mridula Mishra, J., before whom the matter was listed, as per the
roaster, having noticed the controversy, passed the following
orders:-
"....Till disposal of this application, the University and its authorities are restrained from taking any coercive action against the petitioners and similarly situated persons." (emphasis supplied)
Upon change of roaster, the case was listed and
taken up for admission after notice before this Court on
30.07.2010. When the matter was taken up Sri Vinod Kanth and
other learned Senior Counsels appearing in the case drew
attention of this Court to a communication dated 18.06.2010
(Annexure-10 to the Interlocutory Application by the
petitioners), issued by the Secretary, Department of Human
Resources Development, Government of Bihar (Sri K.K. Pathak,
as he then was), recording the proceedings of meeting dated
15.06.2010 of Registrars of various Universities with the
Secretary. This communication shows that in the meeting the
Secretary had warned the Registrars that unless early action and
recovery of amounts wrongly paid (because of allegedly wrong
fixation of date of initial appointment) to the Universities
employees was not recovered immediately and reported, then for
the next 10 months University would not be given payment in
respect salary of its employees. It was pointed out by the
learned counsels that this clearly shows that the Teachers were
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being held at ransom wherein notwithstanding the interim orders
of this Court passed more than a year back, it was being
overridden under threat of withholding grants for payment of
future salaries. Though this was record of the proceeding, it
made no mention about the interim order of this Court as noted
above. Substantial number of Teachers in all Universities of
Bihar were affected. This had created turmoil in the Universities
even though the matter was sub judice with interim protection.
This Court, in view of the threat held out, in direct
conflict with the interim order, as aforesaid, prima facie
considered it to be an act of overreaching the orders of this Court
and noticing the facts in this regard suo motu initiated contempt
proceedings on 30.07.2010 against Sri K.K. Pathak, Secretary,
Human Resources Development Department, Government of
Bihar, Patna and directed the learned Secretary to appear in
person and file his show cause in the Court on 18th August, 2010
at 2:00 PM.
Upon notice having been served to Sri K.K. Pathak
with regard to his appearance and filing of show cause, on
10.08.2010 I.A. No.7088 of 2010 was filed by Sri K.K. Pathak
personally sworn by him before the Oath Commissioner, Patna
High Court. This interlocutory application was for recall of the
order dated 30th July, 2010 by which this proceedings had been
initiated. In this interlocutory application, it was, inter alia,
stated that the said directions (Annexure-10) were given so that
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the financial burden of the Universities comes down. It was
stated in paragraphs-13&14 that while giving such direction to
the University in the said meeting the Department being fully
aware of the stay order of this Court, the Registrars were clearly
told that those Teachers who had obtained stay order from any
Court need not be disturbed and action be taken only against
such Teachers who are not covered by any stay order. These
statements have been sworn by Sri Pathak based upon
information derived from the records of the case but regrettably
even though Annexure-10 was the record of the proceedings of
the meeting it did not reflect any such exception nor any other
chit of paper to substantiate this fact much less contemporaneous
document upon which this information was based was annexed
to this application or brought on record. It was then stated as a
matter of justification for the said order that it was being based
on basis of earlier orders of this Court. However, in paragraph-
19 it is stated that in subsequent meeting of the Auditors and
other Officers of various Universities dated 05.08.2010, it was
clarified by the Director, Higher Education (not Sri K.K. Pathak)
that wherever there were interim orders of Court no action
should be taken. Let it be noted that this clarification only came
after this Court had initiated contempt proceedings on
30.07.2010. Upon these pleadings, it was prayed that there
being justification for the order and no intent to overreach the
orders of this Court, this Court may recall the order dated
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30.07.2010. It may be noted that there was no apology offered
rather it was stated therein that the Court should not have
initiated the proceedings.
On 16.08.2010 I.A. No.7277 of 2010 was filed,
which was again personally sworn by Sri K.K. Pathak on
16.08.2010 before the Advocate Oath Commissioner, Patna
High Court. In this interlocutory application, it was prayed that
the personal appearance of Sri Pathak be dispensed with as Sri
Pathak had on 13.08.2010 filed a Letters Patent Appeal against
the order dated 30.07.2010, passed by this Court, which was still
pending before the stamp reporter with defects. It was prayed
that further proceedings pursuant to the said orders of this Court
be stayed accordingly till disposal of L.P.A.
On 18.08.2010, as earlier ordered, the case was
listed but before brother J.N. Singh, J. as per the changed
roaster. The two interlocutory applications, one for recall of the
order and the other of stay of order dated 30.07.2010, were
apparently pressed. J.N. Singh, J. thought it proper that the
matter be dealt with by this Court and, as such, directed the
matters to be placed before this Court after obtaining the
permission of Hon’ble the Chief Justice. Let it be noted that Sri
Pathak did not appear in person as ordered but on request of
learned counsel as the matter was taken up, for that day alone his
appearance was exempted.
After orders of the Hon’ble the Chief Justice, the
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matter was placed before this Court on 20th August, 2010 but Sri
Pathak chose not to appear. Learned Additional Advocate
General-III pressed the interlocutory applications once again as
would be seen from the order dated 20.08.2010. This Court
reminded the learned Additional Advocate General-III that as
the order of this Court was to appear in person and file show
cause Sri Pathak must first appear and then his interlocutory
application for dropping the proceedings would be considered.
Court also requested the learned AAG-III to inform the Court on
the next day the date and time which would be suitable for Sri
Pathak to appear in the Court as he was a Senior Officer and
must be busy. The case was adjourned for 24th of August, 2010
for the said purpose.
On 24th August, 2010 again Sri Pathak failed to
appear nor did he authorized the learned counsel to intimate any
date for his appearance rather instructed the learned AAG-III to
take the stand that in view of Letters Patent Appeal having being
filed the Court should not proceed further in the matter. This
Court as per dated 24.08.2010 noted all the aforesaid facts and
rejected the prayer on behalf of Sri Pathak clearly holding that
mere preferment of appeal does not amount to stay, as an appeal
filed and left unattended would take decade for being taken up
thus frustrating all orders of the Court. Effectively thus, both the
Interlocutory Applications stood disposed of. Again, on request
of learned AAG-III this Court fixed 25th August, 2010 for
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personal appearance of Sri Pathak.
On 25th August, 2010 when the case was taken up
again Sri Pathak refused to appear. Learned AAG-III informed
the Court that he had personally informed Sri Pathak about the
orders of the Court well in time but because of his defiant
attitude it was difficult for him to persuade Sri Pathak to appear
in this Court. This Court passed over the case in order to enable
Sri Pathak to realize his position and to enable learned AAG-III
to persuade him.
On 26.08.2010 when the case was again listed Sri
Pathak inspite of being informed by the learned AAG-III chose
to be absent. He instructed learned AAG-III to insist upon the
Court first to dispose of his pending interlocutory applications
with regard to recalling and staying the order dated 30.07.2010
and unless that was done he would not consider appearing.
Learned AAG-III informed the Court that even he has reminded
Sri Pathak that Sri Pathak was in no position to dictate orders to
this Court and he must first submit to the jurisdiction of this
Court in the manner directed by this Court but Sri Pathak
continues with his defiant attitude. These are all recorded in the
order dated 26.08.2010 of this Court including the caution issued
by this Court as to the consequences of non-appearance which
was a matter independent of his initial actions. However, again
at the request of learned AAG-III the matter was adjourned to 1st
September, 2010 for appearance of Sri Pathak in the hope that
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being a Senior Officer he would submit to rule of law instead of
trying to dictate orders to this Court as if Court was his
subordinate.
Again, when the matter was listed before this
Court on 1st September, 2010 as the order sheet would disclose
the learned AAG-III reported to the Court that he and the learned
Advocate General, who had called Sri Pathak to his Chambers in
the High Court, tried to persuade Sri Pathak to appear before the
Court, as was repeatedly directed by the Court, but he continued
with his defiant attitude and refused even to exceed to the
request of the learned Advocate General and, as such, did not
chose to appear. Upon this, Court requested the learned
Advocate General to assist the Court in the matter. He appeared
and clearly stated that Sri Pathak failed to abide by his advise.
He was aware of the day to day proceedings in this Court, in
such situation, both the learned Advocate General and learned
Additional Advocate General-III clearly stated that they were
not in a position to defend the defiant attitude of Sri K.K. Pathak
and it would be open to the Court to take all coercive steps to
secure his attendance to which they were in no position to
object, as it is a matter of dignity, authority and majesty of the
Court, which had been challenged and defied by Sri K.K.Pathak.
This is reflected in the order dated 01.09.2010 of this Court.
This Court reserved the matter for consideration as it thought
proper not to react impulsively because the matter had reached
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to a very serious proportion.
For the sake of the records, I may note that on
10.08.2010 State including the Secretary filed a Letters Patent
Appeal being L.P.A. No.1261 of 2010 against the original
interim order dated 07.09.2009 passed by the Court. The said
Letters Patent Appeal was taken up by Division Bench of this
Court on the very next day i.e. 11.08.2010, wherein the Division
Bench in this intra Court appeal presided by Hon’ble the Chief
Justice refused to entertain the appeal observing that if there was
any confusion then it was open to the University or the appellant
to approach the learned Single Judge for vacating the stay or for
early hearing of the writ petition as may be advised. Thus, the
order of the stay continued to operate.
As noted earlier, Sri K.K.Pathak personally filed
I.A. No.7277 of 2010 on 16.08.2010, stating that on 13.08.2010
he had filed a Letters Patent Appeal against the order of this
Court dated 30.07.2010, initiating proceedings in contempt and
personal appearance, which was still pending in the Court. For
the sake of records, I may note that the said L.P.A. No.1289 of
2010 was listed for admission before Division Bench presided
by Hon’ble the Chief Justice but no steps were taken to either
mention the matter or get it heard out of turn. At the cost of
repetition, the fact that such Letters Patent Appeal has been filed
and the prayer for stay of the proceedings before this Court,
merely upon filing of the L.P.A. had already been rejected by
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this Court by order dated 24.08.2010, holding that mere
pendency of appeal does not amount to stay and it was open to
the applicant to take steps for getting the appeal heard at an early
date. No steps were taken, instead the Court was being directed
by Sri Pathak to stay proceeding and decide his applications
before he would consider obeying orders of the Court to appear
personally, which stand even the learned Advocate General and
learned AAG-III had told Sri Pathak could not take. Sri
K.K.Pathak chooses to act in a defiant attitude even then.
Normally and ordinarily, upon the stand taken by
learned Advocate General and learned AAG-III, as recorded in
the order dated 1st September, 2010, this Court should have
proceeded to secure the attendance of Sri Pathak by using all
coercive powers i.e. in the shape of issuing non-bailable
warrants for his production before the Court but to this Court it
appears that the greater the power and authority of the Court the
higher is the responsibility on the Court to exercise it with care,
caution and responsibility. Judicial restraint is a virtue
concomitant of every judicial dispensation. But that has also its
limits. The action must not be egocentric in any case. It is not a
matter of vindicating the personal ego of a Judge, that is in
question, but here it is a question of dignity, majesty and
authority of the Court. In a democratic country, as I believe, for
the survival of the society it is necessary to abide by
constitutional principles and honour rule of law. If an Executive
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Officer and, that too a very Senior Officer, supposed to be a
responsible Officer, chooses in this brazen manner to defy the
authority of the Court and to defy the constitutional position
enjoyed by the Court by virtue of Article-215 of the Constitution
and defies all advise given to him by another constitutional
functionaries, the Advocate General of the State, then what is to
be done?
Having given my anxious consideration to the
facts in respect of these proceedings, I regret to say that this case
reflects a very sorry state of affairs which may, if not corrected,
lead to complete collapse of rule of law.
In my view, the above facts have to be seen as two
separate incidents which would have to be dealt with separately.
First, related to the directions issued by the Secretary vide
Annexure-10 dated 18.06.2010, which prompted this Court to
initiate the proceedings for contempt and appearance of Sri
Pathak, prima facie, on the ground that the said amounts to
overreaching and overriding the orders of the Court. This is an
independent event. What followed thereafter being the defiant
attitude of Sri Pathak in not obeying the orders to appear is an
independent events itself clearly designed to undermine the
authority and dignity of the Court. This was cautioned by this
Court long before (order dated 26.08.2010) as a distinct matter.
Now, coming to the first event i.e. Annexure-10,
being the notings of the meeting held on 15.06.2010, as recorded
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by the Secretary, Sri K.K.Pathak and communicated to the
Universities by communication dated 18.06.2010 (Annexure-10
to the interlocutory application of the petitioner), what this
clearly discloses is an imperative threat by the Secretary to the
Universities to implement the directions for correcting the
service tenure and consequently the pay scales of teaching and
non-teaching employee of the Universities and making
recoveries immediately, failing which their salary would be
stopped for next ten months. There is no other exception. If one
reads this along with the interim order passed over a year back,
as quoted above, which clearly restrained authorities from taking
any coercive action not only against the petitioner but similarly
situated persons then all Universities under similar
circumstances are consequently restrained from taking coercive
steps so long as the stay continued. The tenure of the notings as
circulated and contained in Annexure-10 shows total disregard
to this. In view of the nature of the interim order where was the
occasion to issue such directions.
Even though, this Court is not bound to consider
the cause shown till contempt is purged and the Officer
appeared, still if we look at the interlocutory application being
I.A.No.7088 of 2010, which was filed by Sri K.K.Pathak before
this Court for recall of the order dated 30.07.2010, which is in
the shape of a show cause, two facts he has mentioned in his
defence. Firstly, he was acting bona fide to recover the money
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to reduce the financial burden of the Universities and secondly
that in the said meeting he had clearly repeatedly told Officers
not to take action against the Teachers who had obtained stay
orders from any Court. The first is a justification for action and
the second is a defence. So far as the second fact is concerned
though as per the affidavit filed by Sri K.K.Pathak, this fact as
stated was true to his information derive from the records of the
case, no records in support thereof have been produced. Produce
to the contrary are records of proceedings of that meeting as
circulated under the signature of Sri Pathak himself which is
Annexure-10 which even obliquely does not refer to any such
thing said or done. It is an untrue fact not borne out of the
records and obviously an after thought of Sri Pathak to create
false defence, knowing it to be false. The position stands
clarified when in the same affidavit he annexes a subsequent
communication dated 05.08.2010 under the signature of the
Director, Higher Education, Department of Human Resources,
which for the first time speaks about interim order and giving
effect thereto. Let it be noted that on 30.07.2010 contempt
proceedings had already been initiated.
Upon these facts, I have no manner of doubt that
Sri Pathak did mean to ignore the order of this Court and defy
the same till better sense prevailed upon him though even then
he did not have the dignity to himself writes to the Universities
to ignore his earlier orders in view of the interim orders this
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Court. He is clearly, thus, guilty of contempt. His show cause,
even without his personal appearance is, thus, rejected, but while
considering how to deal with him this Court would keep in mind
that he has apart from creating a false defence, tried to purge the
contempt as well.
Now, we come to the second aspect or the second
event, which is solely because of Sri Pathak his own creation in
course of the Court proceedings. It is the matter of his defiant
attitude not to appear in person before the Court in spite of half a
dozen direct orders in this regard and inspite of repeated advise
to the same effect given by the learned Advocate General and
learned Additional Advocate General-III.
From the facts noted above, it would be seen that
the plea of Sri K.K.Pathak to recall the order, was not
entertained by this Court. Sri Pathak’s plea to stay operation of
the order pending appeal was clearly rejected by this Court.
Letters Patent Appeal challenging the first interim order, for
violation whereof, the proceedings were initiated, was dismissed
by the Division Bench. Sri Pathak was told that he could not
dictate orders or sets terms for his appearance before the Court,
still he defied the authority of the Court. He took no steps for
expeditious hearing of his Letters Patent Appeal challenging the
order initiating the proceedings. He consistently defied the
orders of this Court to appear even when Court gave him an
option to fix date and time as per his own convenience, he
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refused. His conduct clearly showed that he took it to below his
dignity or too demeaning to personally appear before the Court,
which fact stands substantiated by his conduct. He had no
problems of visiting the Chambers of the learned Advocate
General in the High Court. He had even no problem in
appearing twice before the Oath Commissioner in the High
Court for swearing the affidavits in support of the interlocutory
application but he had serious problems and reservation about
obeying orders of this Court to appear before the Court. He
continued to dictate to the Court as to how the Court should
conduct the proceedings, which was deprecated by the learned
Advocate General and learned Additional Advocate General-III
and he was told so. Still he continued with his defiant attitude.
In my view, if these facts show anything they lead
to only one irresistible conclusion that this Officer for some
unknown and undisclosed reasons refuses to submit himself to
the jurisdiction of the Court. He did not even heed to the advise
to the learned Advocate General who apart from being
constitutional functionary is the highest Law Officer of the State
of which he is one of the Officers. This can only be termed as a
well informed decision to undermine the authority of the Court
and deliberately obstructing the proceedings of the Court. By
this process he has not only undermined the authority and
dignity of the Court but frivolously wasted valuable time of this
Court on a matter of self prestige. We must remind ourselves
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that no one is above law and this misgiving must be dispelled.
In such a situation, this Court passes the following
orders:-
(1) It will be open for the State Government
consider as to how it would deal with such
Officer under it in the facts of this case.
(2) For uselessly wasting time of this Court and
creating a false defence as to the first event, Sri
K.K. Pathak is imposed with a personal fine of
Rs.25,000/-(Rupees Twenty Five Thousand) to be
deposited by him within one week with the Bihar
State Legal Aid Committee and receipt thereof
deposited in these proceedings within the said
time.
(3) Let a proceeding in the shape of criminal
contempt proceedings be initiated against Sri
K.K. Pathak, I.A.S. for undermining the dignity
and authority of this Court by his defiant attitude
and deliberately obstructing course of justice in
relation to the second event aforesaid. The
criminal contempt proceedings would be initiated
in a separate independent file starting with copies
of the orders of this Court. As per the provisions
of Rule-7 (i) of the Contempt of Courts (Patna
High Court) Rules 1985 let a notice be issued to
17him in this regard in Form-1 with direction in
terms of Rule 7(iii) to appear in person before the
appropriate Bench of this Court on 27th
September, 2010.
(4) That as the matter in relation to the
proceedings as against Sri K.K. Pathak has thus
been concluded by this Court in the manner
aforesaid, let this case now be listed before the
regular Bench for dealing with the merit of the
writ application after obtaining orders of the
Hon’ble Chief Justice.
Trivedi/ (Navaniti Prasad Singh, J.)