Full Judgment Text
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CASE NO.:
Appeal (civil) 7472 of 2003
PETITIONER:
State of Orissa & Anr.
RESPONDENT:
Aswini Kumar Baliarsingh
DATE OF JUDGMENT: 08/08/2006
BENCH:
S.B. Sinha & Dalveer Bhandari
JUDGMENT:
J U D G M E N T
S.B. Sinha, J.
The respondent herein was appointed as an Assistant Teacher. The
Inspector of Schools did not approve his appointment. A writ petition was
filed by him, wherein by an order dated 3.9.1997 the High Court directed the
Inspector of Schools to do so. The said order was carried into effect by
posting him as Assistant Teacher in a school by an order dated 19.2.1999.
He joined the said school. He acquired the qualification in May, 1999. He
was removed from services on or about 27.5.2000 in terms of the
Government Orders bearing No.11667/SME dated 24.4.2000 and
No.13680/SME dated 11.5.2000 stating that he did not have the requisite
qualification as on 7.6.1994. Indisputably, an original application has been
filed by the respondent before the State Administrative Tribunal bearing
No.1678(C)/2000, which is pending. He also filed an application for
initiating proceedings under Contempt of Courts Act before the High Court,
inter alia, against the Inspector of Schools for alleged disobedience of the
said order dated 3.9.1997. By reason of the impugned judgment, the High
Court set aside the said order of the Inspector of Schools dated 27.5.2000
and directed the appellants to take the respondent back in service and to give
him appropriate posting within one month therefrom. It was further directed
that arrears of salary should be paid to him as early as possible, preferably
within six months from the date of his joining.
The submission of Mr. J.K. Das, learned counsel appearing for the
appellant was that the High Court exceeded its jurisdiction in issuing the
aforementioned directions.
Mr. Rajib Roy, learned counsel appearing on behalf of the respondent,
on the other hand, submitted that the High Court had the requisite
jurisdiction to pass the impugned order in terms of the provisions of
Contempt of Courts Act.
Our attention was also drawn to the fact that even on a previous
occasion the Inspector of Schools did not comply with the order of the High
Court dated 3.9.1997 and the respondent had initiated a proceeding for
contempt against them.
The contemnors were not impleaded in the contempt proceedings in
their personal capacity, but were impleaded in their official capacity. In
O.J.C. No.3298/96 the High Court in issuing the direction by its order dated
3.9.1997, relied on an earlier judgment dated 27.6.1997 [Bibekananda Das v.
State of Orissa) passed in O.J.C.No.1012/96, stating :
"For the reasons stated in the aforesaid judgment
dated 27.6.1997 and the subsequent order dated 3.9.1997,
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we direct the Inspector of Schools to approve the
appointment of the petitioner with effect from 7.6.1994
and pay him the scale of pay of an assistant teacher
(untrained graduate) with effect from the said date. The
arrears, if not already paid, may be calculated and paid to
him within a period of four months of receipt of writ.
The Inspector of Schools will continue to pay to the
petitioner the current salary in the untrained graduate
scale of pay. We make it clear that the Inspector of
Schools will give the petitioner reasonable time to
acquire the B. Ed. qualification (unless he gets exemption
under the relevant rules). Annexure-4 is accordingly
quashed."
Thus no direction was issued by the High Court against the State of
Orissa. It is not in dispute that the cause of action for filing the contempt
petition arose as the Inspector of Schools passed an order consequent upon
the Government Orders issued by the Government of Orissa on or about
24.4.2000. The Inspector of Schools was bound to give effect to the said
orders. The said Government orders may be legal or illegal; but by no
stretch of imagination, it can be said that the Inspector of Schools committed
contempt of court in complying with the directions of the State of Orissa.
For the purpose of setting aside the order of the Inspector of Schools, the
Government Orders were required to be set aside. The said Government
Orders having been issued subsequent to the order of the High Court, no
direction indisputably had been or could be issued in that behalf in the writ
petition. A contempt petition, in our opinion, thus, was not maintainable.
Further more, as noticed hereinbefore, the respondent had already
initiated a proceeding before the State Administrative Tribunal questioning
the legality of the said action on the part of the State of Orissa. The High
Court in relation thereto did not have the jurisdiction, as an appropriate
proceeding was required to be initiated before the Tribunal at the first
instance in view of the judgment of this Court in L. Chandra Kumar vs.
Union of India & Ors. [AIR 1997 SC 1125 : (1997) 3 SCC 261]. The
contemnors, in any event, having not been impleaded as parties in their
personal capacity. In the contempt petition only Director of Secondary
Education and Inspector of Schools were impleaded as parties in their
official capacity. Even the State of Orissa was not impleaded as a party
respondent therein.
The learned counsel, however, may be correct in contending that
while exercising its contempt jurisdiction, the High Court may, in a given
case, issue appropriate direction, although no penal action is taken against
the contemnors. But, even in respect thereof, a finding would be required to
be arrived at to the effect that the contemnors have disobeyed the order of
the Court. Only when such a finding is arrived at, the court may in exercise
of its inherent jurisdiction put the parties to the same position as if its order
was not violated.
In All India Regional Rural Bank Officer Federation & Ors. vs.
Govt. of India & Ors. [(2002) 3 SCC 554], whereupon reliance has been
placed, such a direction was issued, but only after a finding was arrived at,
that the Central Government had issued a notification in utter violation of
the orders passed by this Court.
In Director of Education, Uttaranchal & Ors. vs. Ved Prakash
Joshi & Ors. [2005 (5) SCALE 529 : (2005) 6 SCC 98], whereupon again
reliance has been placed by Mr. Roy, this Court opined:
"\005\005.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. If there was no ambiguity or indefiniteness in
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the order, it is for the concerned party to approach the
higher Court if according to him the same is not legally
tenable. Such a question has necessarily to be agitated
before the higher court. The court exercising contempt
jurisdiction cannot take upon itself power to decide the
original proceedings in a manner not dealt with by the
Court passing the judgment or order. Right or wrong the
order has to be obeyed. 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 of which is
alleged. In other words, it cannot say what should not
have been done or what should have been done. It cannot
traverse beyond the order. It cannot test correctness or
otherwise of the order or give additional direction or
delete any direction. That would be exercising review
jurisdiction while dealing with an application for
initiation of contempt proceedings. The same would be
impermissible and indefensible."
In the instant case, the action taken by the respondents in purported
violation of the Court’s order arose owing to a subsequent cause of action,
namely, orders passed by the state of Orissa and unless the said orders were
set aside, the Inspector of Schools can be said to have flouted the order of
the High Court. The said decisions, therefore, have no application in the
instant case.
For the reasons aforementioned, the impugned judgment cannot be
sustained. It is set aside accordingly. The appeal is allowed. No costs.