Kedar Nath Sinha vs Sahdeo Jha And Ors. on 22 November, 1976

Patna High Court
Kedar Nath Sinha vs Sahdeo Jha And Ors. on 22 November, 1976
Equivalent citations: 1977 CriLJ 1174
Author: H L Agrawal
Bench: H L Agrawal


ORDER

Hari Lal Agrawal, J.

1. The petitioner has obtained a rule from this Court against the respondents as to why they should not be punished for contempt of this Court. The relevant facts leading to the filing of the above application may be narrated briefly.

2. The petitioner was appointed as an Assistant Teacher on 17-11-1959 in T. N. B. Collegiate School, Bhagalpur. At that time he was B. A. trained. Later on, he passed M. A. Examination in the year 1963 and also obtained Diploma in Education in 1970. The Managing Committee of the school in its resolution dated 5-6-1973 appointed the petitioner as the Assistant Headmaster of the School who was also authorised to take charge from the outgoing Headmaster, who was retiring on 14th June 1973, and function as such until a permanent Headmaster was appointed. The recommendation of the Managing Committee was also approved by the District Education Officer by his order dated 6th July 1973 and the scale of pay of Assistant Headmaster was also sanctioned by the District Education Officer to the petitioner. The petitioner was also sanctioned 20% officiating allowance for the post of Headmaster. Things went on well until this Managing Committee continued.

On 8-7-1974, the new Managing Committee came in, and the case of the petitioner is that the new Managing Committee was favourably disposed towards another Assistant teacher of the school, namely Surendra Mohan Pandey (respondent No. 3), and soon after its constitution, on 10-7-1974 adopted a resolution appointing respondent No. 3, as the Headmaster incharge of the school and directed the petitioner to hand over the charge immediately. The District Education Officer was apprised of this situation by the representation of the petitioner who by a letter dated 22-7-1974 addressed to the Secretary of the Managing Committee, directed to allow the petitioner to continue as the Headmaster In charge of the school. The petitioner had to come to this Court in C. W. J. C. No. 1316 of 1974 challenging the order dated 10-7-1974 of the Managing Committee because in spite of the order of the District Education Officer, some of the members of the Managing Committee were not allowing him to function properly. At the time of admission of the said application, however, the application was allowed to be withdrawn in view of the direction of the District Education Officer.

The Secretary of the Managing Committee thereafter served a notice of suspension dated 2-9-1974 on the petitioner in pursuance of a purported disciplinary proceeding started against him and he was called upon to file his show cause within fifteen days. He was served with another order of the same date demoting him from the post of the Assistant Headmaster to the Assistant teacher and was directed to hand over charge of his office to Paras Nath Sinha, another assistant teacher, who had since been promoted as the Assistant Headmaster of the School. It appears that the Secretary of the Bihar Madhyamik Siksha Board, Bihar, (respondent No. 4) had issued a letter to the District Education Officer on 27-8-1974 seeking some clarification from him as to why the petitioner was promoted as the Assistant Headmaster in supersession of other senior teachers and further directed him to withhold payment of the salary at the higher scale payable to an Asst. Headmaster until further orders. The District Education Officer, accordingly, withdrew his earlier approval with respect to the promotion of the petitioner by his letter dated 7-9-1974.

The petitioner then filed another writ application in this Court, being C. W J. C. No. 1511 of 1974 (reported in 1976 Lab IC 1038) (Pat), annexing the aforesaid two letters dated 2-9-1974 of the Secretary of the Managing Committee mentioned above as Annexs. 10 and 11, the letter dated 27-8-1974 of the Secretary, Bihar Madhyamik Siksha Board, as Annex. 12 and that of the District Education Officer dated 7-8-1974 as Annex, 13, for their cancellation and direction upon the respondents not to disturb the petitioner in any manner.

3. The aforesaid writ application was placed for final hearing before me and was allowed on 17th March, 1975, in view of the various provisions contained in Sections 45 and 46 of the Bihar Ordinance No. 112 of 1974, namely the Bihar Secondary Education Board Ordinance, 1974. Which came into force on 20th May, 1974. This Court clearly observed that the decision of the District Education Officer approving the appointment of the petitioner as the Assistant Headmaster was final and “the Board has not been empowered under the Rules to sit over the judgment of the District Education Officer and take any decision upsetting the same”. With respect to the action taken against the petitioner by the Managing Committee under the orders dated 2-9-1974, which were made Annexs. 10 to 11 to the writ application, it was observed that “the proceedings taken against the petitioner and passing the order of suspension as contained in Annex. 10 … … … is clearly without jurisdiction” in view of the provisions of the Ordinance. All the four impugned Annexures contained in An-nexures 10, 11, 12, 13 to the writ application were quashed by a writ of certiorari. it was., however, made clear that it would be open to the ”appropriate authority”, if they felt satisfied, to take any action against the petitioner for the irregularities committed by him if any.

Aftar this order was passed, on 30-4-1975, at the instance of and with the consent of the learned Counsel who appeared for the parties in that case, an order was passed that Annex. 12 to the writ application would not be deemed to have been quashed.

4. The present Miscellaneous Judicial Application Under Section 12 of the Contempt of Courts Act was filed on 24th of March 1976 by the petitioner alleging that when he went to join the school as the Asstt. Headmaster, respondent No 2, the Secretary of the Managing Committee of the School, did not allow him to do so. The allegation against respondent No. 4, Shri Rameshanand, the Secretary of the Bihar Madhyamik Siksha Board, was that he issued a fresh letter to the District Education Officer, Bhagalpur, calling for a fresh report as was asked for in his earlier letter dated 27-8-1974 (Annex. 12 to the writ application), thereby re-opening the matter regarding the validity of the appointment of the petitioner as the Assistant Headmaster, which question stood finally and firmly concluded. This communication issued by respondent No. 4 has been made Annex. 3 to the present application. Respondent No. 4 has stated in this letter to the District Education Officer that although the High Court had finally disposed of the writ application, according to which the petitioner was allowed to continue as the Assistant Headmaster of the school, taut inasmuch as the letter issued by his office dated 27-8-1974 (Annex. 12 to the writ application) was not cancelled, it was still open for the Board to take a decision in the matter and, accordingly, he called upon the District Education Officer to send his report in the matter so that further action and final decision in the matter may be taken. The petitioner has alleged that respondent No. 4 has been acting in collusion with respondents Nos. 2 and 3 all through and is responsible for creating all complications in the matter and his direction contained in his letter dated 12-8-1975 (Annex. 3) to the District Education Officer was with a clear intention to flout the order of this Court calculated to show disrespect to the decision given by this Court. The petitioner has further annexed a resolution of the Managing Committee dated 30-3-1975 (Annex. 4) which has been signed by the Secretary (respondent No. 2) and the President (respondent No. 1) of the school. This resolution was passed by the Managing Committee in the background of the decision of this Court and that the decision of this Court was wholly misleading (Sarbatha Bhramak). In the long resolution contained in several pages, it was further resolved that till the proceeding against the petitioner was pending before the District Control Committee and he did not give any satisfactory explanation for the charges, he may not be allowed to join the school. It further resolved that the petitioner was wholly unfit for the post of Assistant Headmaster and re-affirmed its earlier resolution dated 2-9-1974 contained in Annex. 11 to the writ application, whereby the petitioner had been, demoted as an Assistant teacher. The petitioner immediately protested to the Secretary of the Managing Committee by a letter dated 20-5-1975 (Annex. 5 to this application) also clearly stating that the decision of the Managing Committee was contrary to the Judgment of this Court in the above writ application and that he should not be addressed as physical Instructor. Respondent No. 2 replied to this letter of the petitioner by his letter dated 24-5-1975 (Annex. 6 to this application) taking a queer attitude and stating that there was no proof available from the records of the school that the petitioner was ever appointed as the Assistant Headmaster of the school and, therefore, he would be addressed only as the physical Instructor. The petitioner has also appended Annex. 7 to the present application which is the statement prepared by the Headmaster regarding the payment of salary to the teaching staff of the school for the period 1-4-1975 to 31-12-1975 to show that in place of the petitioner, the aforesaid Paras Nath Singh was shown as the Assistant Headmaster of the school.

5. On these allegations, the petitioner contended that the respondents have committed a wilful disobedience of the order of this Court passed in. the aforesaid C. W. J. C. No. 1511 of 1974 on 17-3-1975 (reported in 1976 Lab IC 1038) (Pat), and thus committed a contempt of this Court, It has further been stated that the resolution dated 30-3-1975 (Annex. 4 to this application) passed by the Managing Committee also amounts to scandalisation of the judgment of this Court. It is however not necessary to consider this aspect of the matter as in view of the provision of the present Contempt of Courts Act, this would be a criminal contempt, for which a different provision has been provided for taking cognizance. The question that falls for consideration, therefore is confined as to whether the respondents or any of them can be said to be guilty of wilful disobedience of the order of this Court and thereby liable for the punishment under the Contempt of Courts Act.

6. Cause has been shown jointly by respondents 1 to 3 alone and they have denied the allegations of the petitioner that they had ever put any obstacle in his way of functioning as the Assistant Headmaster. They have also said that they have no intention to disobey or to show disrespect to the order of this Court, but they passed the impugned order in pursuance of the letter of respondent No. 4 and seeing the petitioner’s “stubborn attitude in not replying to the earlier charges levelled against him and his subsequent misconducts after the order of this Hon’ble Court … … … in the interest of the school’s administration and maintenance of discipline in the school, thought it expedient not to let him join in the school till he submitted a satisfactory explanation about his subsequent misconducts which were committed by him after the order of this Hon’ble Court”. It has however, been asserted by them that the petitioner has never been kept out of the office of the school and has been receiving his salary continuously and inasmuch as the petitioner was “still under the period of probation … … … the managing committee without the slightest intention to show disrespect or to hold the order of this Hon’ble Court in derogation, resolved to the aforesaid effect”. In para, 9 of the show cause, a clear statement has been made by these respondents to the effect that “the petitioner was appointed as the Physical Instructor and he is still discharging the duties and obligations of a Physical Instructor … … … by the respondent No. 2 cannot be branded as contemptuous action by any stretch of imagination … … … and he is till the date discharging the duties and functions of the Physical Instructor”. With respect to the designation given to Paras Nath Sinha as the Assistant Headmaster of the School in Annexure 7, these respondents say that it was due to mistake. On these statements, the respondents have pleaded that they have never violated or shown disrepect to the judgment of this Court “rather they have all along acted in obedience of it”. The respondents have also purported to offer apology and they say that “if due to any inadvertence some undesired for reflexion has been cast upon the judgment of this Hon’ble Court by the conduct of these respondents, they tender unqualified apology.”

7. Respondent No. 4 had all along absented himself and only on the last day of the hearing Mr. J. N. P. Verma filed his appearance.

8. The new Contempt of Courts Act has defined “contempt of court” in two parts ; “civil contempt and criminal contempt”. According to the definition, civil contempt means “wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court”. As I am not concerned with the aspect of the criminal contempt alleged to have been committed by the respondents as already stated earlier, I have deliberately omitted to state the facts relating to this aspect of the case either of the petitioner or of the respondents. The essential ingredient for a civil contempt is “wilful disobedience”, and not any and every disobedience, due to various reasons. That the disobedience was wilful has to be proved, Which expression connotes “purposeful” and “clear intention to flout”. At the outset I may also refer to the provision relating to apology contained in the Act. Section 12 deals with punishment for contempt of Court, and the punishment prescribed is simple imprisonment for a term which may extend to six months, or with fine up to two thousand rupees, or with both. A provision has been added which reads that “the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court”. To this proviso, there is an Explanation, according to which “an apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide”.

9. Long arguments were made by Mr. Prabha Shankar Misra who appeared on behalf of the respondents Nos. 1 to 3. The first contention which he pressed with great force was that inasmuch as the writ issued by this Court in the aforesaid C. W. J. C. No. 1511 of 1974 : (reported in 1976 Lab IC 1038) (Pat) was in the nature of a certiorari which merely quashed certain orders passed by the respondents, and not in the nature of mandamus or prohibition, the question of any disobedience, much less, wilful disobedience, did not arise at all, the essence of the argument of Mr. Misra was that in the case of a writ of certiorari, there can never be a case of a wilful disobedience as a writ of certiorari merely quashes an order, and it does not contain any direction, being declaratory in nature and contains no obligation to obey any order. Counsel dwelt on length on this part of the argument, but I am afraid, I do not find it possible to accept his view. The definitionl of civil contempt, noticed earlier, emaraces in itself the mischief of disobedience of any order or writ or other process of the Court as well. The writ jurisdiction of the High Court under Article 226 of the Constitution of India is a high prerogative power conferred by the Constitution of India and a writ of certiorari is intended to bring up before the High Court the record or proceedings or determination of inferior tribunal and to quash them if they are found to have acted in excess of its jurisdiction. Ordinarily, a writ of certiorari would issue for quashing any final order of any proceeding. When the order passed by any subordinate authority is quashed by a writ of certiorari, it is removed from the way of the party in enforcing his rights. The Supreme Court in the case of T. C. Basappa v. T. Nagappa, while considering the nature and scope of writ of certiorari observed as follows :

It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The offending order or proceeding so to say is put out of the way as one which should not ‘be used to the detriment of any person … …

10. From the above discussions, it is not possible to accept the contention of Mr. Misra that in order to attract the definition of civil contempt, the contemner must be shown to have committed disobedience of some express order in the nature of a direction to act or to abstain from acting in any particular manner and that in a writ of certiorari, no such direction being issued, but simply some order quashed any such action would not be called a disobedience although the act may be contrary to the declaration made and violative of the intention of the High Court for maintaining the status quo ante which may result on the quashing of any order of a subordinate authority. I am clearly of the view that if in the writ jurisdiction, a writ of certiorari is issued and some adverse orders against the writ petitioner are cancelled, and if in spite of that any authority acts contrary to the situation obtaining on the cancellation of the impugned order, then that would amount to a clear disobedience, although the writ issued did not contain any specific direction in the nature of a prohibition or mandamus. Taking other view would render this extraordinary writ jurisdiction entirely fruitless and meaningless, and although a person may succeed in breaking the obstruction in his way, still he would not be allowed to reap the advantage flowing or available to him. In my opinion, if any such act is done which might render a writ of certiorari issued by a High Court meaningless, such’ conduct certainly would tend to bring the ; authority of the Court and the administration of law into disrepute.

11. Mr. Misra, next contended that the judgment of this Court rendered in C. W. J. C. No. 1511 of 1974 : (reported in 1976 Lab IC 1038) (Pat) was itself without jurisdiction, inasmuch as no writ could be issued against the Managing Committee in relation to the contract of service. In other words, the Managing Committee was not amenable to the writ jurisdiction of this Court and the writ issued by this Court itself being void, its violation would not expose any person to any peril. This question was not raised in the main case and the decision right or wrong is binding on the parties. Nonetheless, I shall deal with this point also. Reliance is placed upon the case of Bishwa Nath Khetan v. President, Board of Secondary Education, Bihar 1973 BBCJ 110 where an observation has been made that where an order itself was without jurisdiction, it had no binding effect and could be ignored by the parties. He, however, could not cite any authority in support of his main contention that no writ could be issued by this Court against a Managing Committee of a High School which was a statutory body under the Bihar High Schools (Control and Regulation of Administration) Act, 1960 (Act 13 of 1960), although he had stated to cite the same. This question, however, has been directly answered on times without number by this Court and reference may be made to a recent decision in C. W. J. C. No. 693 of 1974, (Sheo-nandan Sinha ‘Vikash’ v. President, Board of Secondary Education Bihar, Parna) decided on 3rd February 1976 (Pat) where a learned single Judge of this Court, and if I may say so with great respect, in his well, discussed judgment, on a consideration of the Supreme Court cases in Indian Airlines Corporationv.Sukhdeo Rai, and Sirsi Municipality v. Cecelie Kom Francis Tellis laid down that a writ would lie against a .Managing Committee because it was a public body created in accordance with a statute which must act within its four corners, and if it acts in violation of the same, or any rule or regulation, it be-eomea amenable to the writ jurisdiction of this Court I find myself in respectful agreement with the view expressed in the above decisions.

12. Learned Counsel for the respondents next contended that inasmuch as the letter issued to the District Education Officer toy respondent No. 4 on 27-8-1974, which was Annexure 12 to the writ application, was not quashed and this Court had permitted the appropriate authority to “take any appropriate action” against the petitioner for the irregularities committed by him, some bona fide confusion was created in the mind of the respondents that they could proceed in the matter and, accordingly, the complained action would not amount to a wilful disobedience within the meaning of the Act. Reliance in this connection was placed on a decision of the Delhi High Court in the case of Nand Kishore Chela Mal v. Commissioner of the Municipal Corporation of Delhi where an observation has been made that “The Court must make all allowances for errors of judgment and difficulties arising from the attending circumstances in a given case. Punishment under the law of contempt for disobeying the orders of the Courts is called for when the lapse is deliberate and in defiance of the authority of the Court”.

13. It is not possible to accept this plea. On reading the judgment delivered in the writ case, this Court clearly observed that in view of the Ordinance of 1974, the Managing Committee was deprived of its power to initiate a disciplinary proceeding and it was on that account that the orders contained in Annexures 10 and 11 were set aside. There was a clear observation and finding in that judgment that according to the Service Condition Rules, 1972, the recommendation of the Managing Committee regarding any appointment, when approved by the District Education Officer, was conclusive and final and, therefore, there was no authority in the Board of Secondary Education to reopen the matter. On this ground Annexures 12 and 13 were also quashed, Annex. 12 being restored later on by a consent order, as already indicated above. The cancellation of Annexure 12 was withdrawn on an argument that that may cause handicap in the way of the “appropriate authority” from initiating any proceeding against the peti turner it thought fit, in terms of the observation in the concluding portion of the Judgment, inasmuch as Annex. 12 was only in the nature of making some enquiries. Reading the judgment as a whole, there is no scope for any confusion that unless and until any fresh proceeding was initiated by somebody competent in law, against the petitioner and found him guilty and decided to take any action, the petitioner’s appointment/promotion as the Assistant Head Master of the School had become firm and final.

14. Having considered all the technical arguments advanced on behalf of the respondents, I now proceed to consider as to whether the actions of the respondents enumerated above constitute any “Wilful disobedience” within the meaning of. the Act and would expose them to any punishment. Learned Counsel appearing for the petitioner strongly contended that in the manner the respondents have acted in the matter, who were all parties to the writ application, and the various orders that have been passed by them hurriedly was clearly a positive proof of their mala fide intention to wilfully disobey the order of this Court.

The Judgment in the writ application was delivered on the 17th of March, 1975, and I have already shown the findings recorded by this Court in favour of the petitioner in the third paragraph of this judgment to the effect that the approval of the District. Education Officer by his order dated 6-7-1973 on the recommendation to the Managing Committee promoting the petitioner as the Assistant Head Master of the School was final in the eye of law and the Board had no jurisdiction to reopen the matter, much less to upset the same. It was further found that the Managing Committee in question was not competent to pass any adverse order in any disciplinary proceeding against the petitioner by virtue of the Ordinance which has come into force. By quashing the orders of the Managing Committee and that of the District Education Officer, under pressure of respondent No. 4, the promotion of the Petitioner to the Post of the Assistant Headmaster for the time being had become final and he could not be interfered with in the enjoyment of that status and functioning as sudhuntil, of course, any appropriate proceeding was initiated in future by a competent body. To borrow the expression of the Supreme Court quoted earlier — the offending order or proceedings, so to say, were put out of the way of the petitioner and they could not be used to his detriment. That was the inevitable result that had to follow as a matter of course in view of his success. In spite of the above position, respondent No. 4 issued a fresh letter to the District Education Officer calling for a report which was demanded by him in his earlier letter (Annex. 12 to the writ application) and purported to reopen the matter questioning the validity of the appointment of the petitioner as the Assistant Head Master, which was not open to him. In view of the decision of this Court that the matter stood concluded after the approval of the District Education Officer, there was no scope for any confusion which could be created in the mind of any of the respondents in this regard, and in view of the clear and categorical findings recorded in the judgment of this Court, the principle of Nand Kishore Chela Mal’s case 1969 Cri LJ 539 (Delhi) (Supra) would have no application to the facts of the present case.

15. Respondent No. 4 has not filed any show cause and in his letter dated 12-8- 1975 (Annex 3 to this application) while stating that the High Court has given a final decision in the matter he has further said that the Board had still the authority to take decision in the matter of appointment of the petitioner, Which apparently stands quite contrary to the findings of this Court. Respondent No. 4 by the above act has, therefore, certainly committed a wilful disobedience of the Order of this Court and purported to reopen the question to the detriment of the petitioner in a manner in which he was not authorised to do, in pursuance of the decision of this Court. I would, accordingly, hold respondent No. 4 guilty of the contempt of this Court.

16. The conduct of the other three respondents is equally unbecoming of their office. The resolution of the Managing Committee dated 30-3-1975 (Annex. 4 to the writ application) within less than a fortnight of the delivery of the Judgment in the aforesaid writ application, making aspersions against the petitioner and reaffirming its earlier orders dated 2-9-1974 (Annexs, 10 and 1.1 to the writ application) is clearly indicative of the fact that they had adopted the said resolution deliberately, acting in opposition to the authority of this Court. The criticism of the judgment of this Court in the earlier part of the said resolution that it was misleading (Bhramak) signifies their attitude towards the decision of this Court. Although no proceeding, as already said earlier, has been taken for the said criticism, that is certainly indicative of the intention of respondents 1 and 2, namely, the President and the Secretary of the Managing Committee of the school, for their said action as tending to bring the authority of this Court and the administration of law into disrepute. This Court had clearly and categorically quashed the earlier orders of the Managing Committee dated 2-9-1974 and had only permitted the “appropriate authority”, if it so felt, “to take any appropriate action against the petitioner”. By this observation, the appropriate authority was permitted to take fresh proceeding, but the respondents Nos. 1 and 2, in utter disregard of the direction of this Court and with a determination and uncalled for haste, reaffirmed the same said order. The dominant intention to disobey the order of this Court is also manifested from the reply of respondent No. 2 in his letter dated 24-5-1975 (Annex. 6 to this application) to the objection of the petitioner in addressing him as Physical Instructor and that he was never appointed as the Head Master and there was no record or proof of that fact and insisted to describe him as a Physical Instructor and refused to recognise him as the Assistant Head Master.

Surendra Mohan Pandey, the Head Master of the School (respondent No. 3) has also refused to recognise the petitioner as the Assistant Head Master and in the statement that he prepared in his official capacity (Annex. 7 to this application), he has shown, as already stated earlier, one Paras Nath Sinha as the Assistant Head Master. These actions of the respondents in the background in which they have been acting for some time, in my opinion, is indicative of their definite intention not to allow the petitioner to function as the Assistant Head Master of the school, and with this end in view, respondents 1 and 2, with a mala fide motive and design, in order to circumvent the consequences that were to follow from the order of this Court, illegally adopted a resolution on 30th March 1975, which has been fully discussed. I have, therefore, no doubt whatsoever in my mind that all the three respondents, in agreement with each other, have wilfully flouted the orders of this Court with a clear and purposeful intention of placing Parsa Nath Sinha, a man of their choice, in place of the petitioner as the Assistant Head Master of the school, in utter disregard of the judgment of this Court and, therefore, they must be held to be guilty for the contempt of this Court and liable to be punished. In my opinion, the disobedience committed by the respondents is grave and, therefore, it would not be desirable in the interest of the dignity of this Court to discharge them on their apology, which again suffers from qualification and conditions which are not bona fide and is a mere pretence to remit the punishment for that. I would, accordingly, punish each of the respondents with a fine of Rs. 250/- as, in my opinion, that would satisfy the ends of justice.

17. In the result, the application succeeds, the rule issued by this Court is made absolute and the respondents are found and held to be guilty for the contempt of this Court and punished as above. If the respondents or any one of them fail to pay the fine, they or he, as the case may be, will undergo simple imprisonment for a period of three weeks. Application allowed.

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