$~7 * + % IN THE HIGH COURT OF DELHI AT NEW DELHI CONT.CAS(C) 538/2016 & CRL.M.No.13111/2016 ARCHANA CHUGH & ANR ........ Petitioner
s Through Mr.APS Ahluwalia, Sr.Advocate with Mr.S.S.Ahluwalia, Advocate. versus G S MOONDHRA & ORS ........ RESPONDENTS
Through Mr.Randhir Jain with Mr.Dhananjai Jain and Mr.Bhoop Singh, Advocates for R-1. Mr.R.A.Iyer with Ms.Shruthi P., Advocates for R-3/DOE. Date of Decision :
18. h November, 2016 CORAM: HON'BLE MR. JUSTICE MANMOHAN JUDGMENT
MANMOHAN, J: (Oral) The Director of Education-respondent no.3 is permitted to file the Status report within a period of one week. List on 16th January, 2017. C.M.No.42147/2016 1. Present application has been filed challenging the order dated 21st October, 2010 by which the petitioner No.1’s services have been terminated on the ground that the respondent-school had discontinued CONT. CAS (C) 538/2016 Page 1 of 5 the subject of Biology in classes 11th and 12th and the petitioner had become ‘surplus’.
2. Mr. A.P.S. Ahluwalia, learned senior counsel for the petitioner states that the valuable service of 25 years of the petitioner as a permanent teachers has been terminated out of vendetta. According to him, it is a clear case of awarding punishment to the petitioner No.1 for having approached this Court by way of present contempt petition against the respondent nos. 1 and 2.
3. Issue notice.
4. Mr.Randhir Jain, Advocate accepts notice on behalf of respondent no.1. He states that the termination of service of the petitioner is an independent cause of action and cannot be agitated in the present contempt proceedings. He also states that no interim order in the nature of injunction can be granted in a contempt proceeding.
5. Mr.Jain prays for and is permitted to file a reply-affidavit within a period of four weeks. Rejoinder-affidavit, if any, be filed before the next date of hearing.
6. Having heard the learned counsel for the parties, this Court is prima facie of the view that the termination of service of the petitioner No.1 is vitiated by malice as it is difficult to believe that in a school at Delhi students do not wish to study the subject of Biology in classes 11th and 12th.
7. The Supreme Court in Delhi Development Authority Vs. Skipper Construction Co. (P) Ltd. and Another, (1996) 4 SCC622has held as under:-
"CONT. CAS (C) 538/2016 Page 2 of 5 In Mohd. “17. The principle that a contemner ought not to be permitted to enjoy and/or keep the fruits of his contempt is well settled. Idris v. Rustam Jehangir Babuji[(1984) 4 SCC216:
1984. SCC (Cri) 5
(1985) 1 SCR598 this Court held clearly that undergoing the punishment for contempt does not mean that the court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its orders. The petitioners therein had given an undertaking to the Bombay High Court. They acted in breach of it. A learned Single Judge held them guilty of contempt and imposed a sentence of one month's imprisonment. In addition thereto, the learned Single Judge made appropriate directions to remedy the breach of undertaking. It was contended before this Court that the learned Judge was not justified in giving the aforesaid directions in addition to punishing the petitioners for contempt of court. The argument was rejected holding that “the Single Judge was quite right in giving appropriate directions to close the breach (of undertaking) 18. The above principle has been applied even in the case of violation of orders of injunction issued by civil courts. In Clarke v. Chadburn [(1985) 1 All ER211 Sir Robert Megarry V-C observed: “I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Wilful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that although they are liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was CONT. CAS (C) 538/2016 Page 3 of 5 done in breach of the law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them.” the 19. To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Ltd. v. S. Suppiah [AIR1975Mad 2
(1975) 2 MLJ54 and Sujit Pal v. Prabir Kumar Sun [AIR1986Cal 2
(1986) 90 CWN342 . In Century Flour Mills Ltd. [AIR1975Mad 2
(1975) 2 MLJ54 it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order.
20. In Sujit Pal [AIR1986Cal 2
(1986) 90 CWN342 a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property. The Court directed the restoration of possession to the plaintiff with the aid of police. The Court observed that no technicality can prevent the court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of CONT. CAS (C) 538/2016 Page 4 of 5 Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law.
21. There is no doubt that this salutary rule has to be applied and given effect to by this Court, if necessary, by overruling any procedural or other technical objections. Article 129 is a constitutional power and when exercised in tandem with Article 142, all such objections should give way. The court must ensure full justice between the parties before it.” 8. Consequently, till the next date of hearing, the termination order dated 21st October, 2016 is stayed.
9. List on 16th January, 2017. Order dasti. MANMOHAN, J NOVEMBER18 2016 KA CONT. CAS (C) 538/2016 Page 5 of 5