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Ratan NaraIn Mulla Vs. the Chief Secretary, Govt. of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1975CriLJ1283
AppellantRatan NaraIn Mulla
RespondentThe Chief Secretary, Govt. of U.P. and ors.
Cases ReferredHari Raj Singh v. Sanchalak Panchayat Raj
Excerpt:
- - (1) that a writ in the nature of certiorari or like writ or direction may issue to quash the finding of the tribunal (opposite party no. (2) that a writ in the nature of mandamus or like writ or direction may issue to the opposite party no. again, where even if there is no such delay the government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the court should ordinarily refuse to issue the writ of mandamus for such payment......of uttar pradesh through its chief secretary, sri b. d. sanwal and four other officers of the state government were impleaded as opposite parties. the court, however, issued notice to show cause only to respondents nos. 6 and 4 viz. the state of uttar pradesh and sri r. k. kaul, secretary, griha vibhag (jails), and did not issue notice to other respondents. according to the petitioner the opposite parties committed contempt of this court by not paying to the petitioner arrears of his salary even though the order of his dismissal from service had been quashed by this court in the writ petition filed by him. the facts giving rise to this case, briefly stated, are as follows:the petitioner was an employee of the state government and was working as jail superintendent. on -27-3-1959 he.....
Judgment:
ORDER

Hari Swarup, J.

1. This petition has been moved under Section 12 of the Contempt of Courts Act 1971 (hereinafter referred to as the Act) for punishing the opposite parties for having committed the contempt of this Court. Besides the State of Uttar Pradesh through its Chief Secretary, Sri B. D. Sanwal and four other officers of the State Government were impleaded as opposite parties. The Court, however, issued notice to show cause only to respondents Nos. 6 and 4 viz. the State of Uttar Pradesh and Sri R. K. Kaul, Secretary, Griha Vibhag (Jails), and did not issue notice to other respondents. According to the petitioner the opposite parties committed contempt of this Court by not paying to the petitioner arrears of his salary even though the order of his dismissal from service had been quashed by this Court in the Writ petition filed by him. The facts giving rise to this case, briefly stated, are as follows:

The petitioner was an employee of the State Government and was working as Jail Superintendent. On -27-3-1959 he was suspended and charges of misconduct were levelled against him. The matter was entrusted to the U. P. (Disciplinary) Proceedings Administrative Tribunal. One of the members of the Tribunal was the Deputy Inspector General of Prisons. According to the petitioner he was lower in rank to him and could not, therefore, participate in the enquiry. The petitioner on this basis withdrew from the enquiry. The enquiry proceeded in his absence and the Tribunal returned the finding that the charges against the petitioner had been proved. On the basis of this report the Slate Government dismissed the petitioner from service on 10-12-1960. The petitioner thereupon filed a writ petition in 1961. This petition was allowed on the ground that D. I. G. (Prisons), being not superior in rank to the petitioner, could not participate in the enquiry, and the consequential order of dismissal was set aside. The State Government filed a special appeal. During the pendency of the appeal an ordinance was issued to the effect that the D. I. G. Prisons was superior in rank to the Superintendent of Jail and would always be deemed to have been so. After this Ordinance the special appeal was allowed against the judgment of the learned single Judge and the case was remanded to him for decision of the writ petition on other grounds. Petitioner's application for leave to appeal to Supreme Court was rejected on the ground that there was no final order. The writ petition ultimately was dismissed by the learned Single Judge in 1970. The petitioner filed special appeal No. 828 of 1970, which was allowed mainly on the finding that the petitioner had not, in the circumstances of the case, received opportunity to show cause as contemplated by Article 311 of the Constitution. The order dismissing the petitioner was accordingly quashed. This order has become final. Thereafter the petitioner sent a memorial to the State Government for payment, of arrears of his salary. The question of his reinstatement did not arise as he had already retired on the basis of superannuation in 1969. The memorial did not bring any result in his favour in the sense that the petitioner was not paid the arrears of salary. In February 1974 the petitioner moved the present application under the Contempt of Courts Act. During the pendency of the application, on 16-7-1974, an order was passed by the State Government to the effect that as by the time the High Court quashed the dismissal order the petitioner had retired he was entitled to get only his pension. As regards the arrears of salary the State Government took the view that the conduct of the petitioner did not entitle him to the same, and finally refused to pay it on the ground that the claim had become time-barred.

2. A preliminary objection has been raised by the learned Chief Standing Counsel to the effect that the contempt proceedings did not lie either against the State Government or its officers. The contention is that the State Government cannot be punished as it is not a 'person' who can deliberately commit contempt and the officers cannot be liable for punishment as the order was actually an order of the State Government. The contention of the learned Counsel for the petitioner is that both the State Government and its officers are liable to be punished under the Aot. Reference, in respect of this controversy, has been made to two decisions, one of the Calcutta High Court and another of the Supreme Court. In the Calcutta case, Tarafatullah v. S.N. Maitra : AIR1952Cal919 , although the Court came to the conclusion that no contempt had been committed, the two learned Judges constituting the Bench took different views about the liability of the State Government to be proceeded against for disobedience of the order. In this case certain interim orders of injunction had been issued by the High Court which were said to have been disobeyed. Chakravarti, J. took the view that punishment for contempt could be asked for even against the government. The relevant observations are in the following terms:

I do not say that in fit cases a writ for contempt may not be asked for against a corporation itself, or against a Government. In what form, in such a case, any penal order, if considered necessary, is to be passed and how it is to be enforced are different matters which do not call for decision in this case. In England there is a specific rule providing for sequestration of the corporate property of the party concerned, where such party is a corporation, I am not aware of any similar rule obtaining in this country, but I do not consider it impossible that in a fit case a fine may be imposed and it may be realised by methods analogous to sequestration which would be a distress warrant directed against the properties of the Government or the Corporation.

3. P. B. Mukerji, J. took the following view:

A State cannot as such be said to commit contempt. In the case of the State the allegation must be against a particular officer of the State.

4. In State of Bihar v. Sonabati Kumari : [1961]1SCR728 the Supreme Court considered the Calcutta case. The Supreme Court was considering Clause (3) of Rule 2 of Order 39, Civil P. C. which says:

In case of disobedience, or of breach of any such terms, the Court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding six months, unless in the meantime the Court directs his release.

While dealing with this clause, the Supreme Court observed:

No doubt the State Government not being a natural person could not be ordered to be detained in civil prison, on the analogy of Corporations for which special provision is made in Order 39, Rule 5 but beyond that, both when a decree for a permanent injunction is executed and when an order of temporary injunction is enforced the liability of the State Government is to be proceeded against appears to us clear.

This decision makes it clear that if the State Government disobeys an injunction its property may be attached as provided in the Code of Civil Procedure. But under the Contempt of Courts Act there is no provision for attachment of property. The present is not an application for execution of the decree but only for action against the State Government under the Contempt of Courts Act.

5. Further, the Contempt of Courts Act requires a 'wilful' disobedience of a decree which contemplates some sort of 'mens rea.' This is another feature which distinguishes the present case from the cases discussed above. The Government not being a natural person can have no 'mens rea'; only its officers can.

6. Under the Constitution the State has three wings, the executive, the legislative, and the judiciary. All the three constitute the State. Decisions of the judiciary are as much binding on the State Government as those issued by the executive authority. Article 154(1) of the Constitution states:

The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.

Article 166 provides that:

166.(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.

(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor,

(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.

It is thus clear that the State Government not being a natural person does not act except through its instrumentalities, agencies and officers. Contempt proceedings involve the application of the 'will'. That 'will' is expressed through the decision-making by an officer. If the officer makes a decision which amounts to wilful disobedience of the order of the Court it would be contempt of Court committed by him, as he is the person who brings into being the disobedience, and he will become liable to punishment not only for committing contempt of the Court but also for dereliction of duty by the Governor exercising the executive power of the State,

7. In the Act, 'civil contempt' has been defined to be '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'. Section 12 of the Act makes an act of civil contempt punishable with simple imprisonment for a term which may extend to six months or with a fine which may extend to two thousand rupees, or with both. Punishments provided for contempt of Court art different from the coercive enforcement measures provided for disobeying an injunction order under Order 39, Rule 2 (3) of the Code of Civil Procedure. The State Government not being a natural person can of course not be sent to prison. Similarly a fine imposed on the State Government will only mean a fine recovered from the State Government to be paid to the State Government. Because the State Government, as such, can have no 'mens rea' to commit contempt of court and the Act provides for no adequate penalty which may be imposed against the State Government the intention of the legislature appears to be that the writ of contempt must run only against natural persons and not against the Government. The State Government, as such, cannot, therefore, be liable for contempt of Court, but its officers who are responsible for the commission of contempt will be liable to be punished for contempt. The Secretary, Griha Vibhag (Jails), respondent No. 4 was alleged in the petition to be responsible for implementing the Court's order. This position of responsibility has not been denied in the counter-affidavit. Hence, if the action in the present case amounts to contempt of Court then respondent No. 4 will be held guilty and liable to punishment. This leads to the question whether the non-payment of the petitioner's arrears of salary amounted to contemnt of Court.

8. According to learned Counsel for the petitioner the writ issued by this Court had implied in it a direction to pay the arrears of salary also. He has contended that the substantive right on the basis of which he had filed the writ petition was the right to get the salary and hence the quashing of the order of dismissal would mean a judgment and decree by this Court directing the payment of arrears of salary. In this connection he has relied on 'The Law of Extraordinary Legal Remedies' by F. G. Ferris (page 178) which defined the purpose of a writ of certiorari:

Its purpose is to bring for review before a superior court proceedings and judgments of inferior courts and tribunals clothed with authority to act judicially where no appeal or other adequate remedy is available, and is appropriate in all such cases where the substantial rights of an applicant have been so far invaded as to prejudicially affect him if the proceeding or judgment remains unreversed.

The petitioner, in the writ petition, had claimed the following reliefs:

(1) That a writ in the nature of certiorari or like writ or direction may issue to quash the finding of the Tribunal (opposite party No. 2) dated July 26, 1960 and the order of the State Government dated 10-12-1960 communicated to the petitioner on 12-12-1960 dismissing the petitioner from service.

(2) That a writ in the nature of mandamus or like writ or direction may issue to the opposite party No. 1 to treat the petitioner as duly continuing in service.

(3) That the cost of this petition may be awarded to the petitioner against the opposite parties.

The final order in the special appeal was in the following terms : 'We accordingly allow the appeal and set aside the judgment and order of the learned single Judge. The writ petition is allowed and the order of dismissal passed against the appellant is quashed. The appellant is entitled to the costs.'

This Court therefore partly allowed relief No. 1, did not grant relief No. 2 and granted relief No. 3. The effective order passed by this Court is only to the effect that the order of dismissal passed by the State Government against the petitioner was quashed. In T. C. Basappa v. T. Nagappa : [1955]1SCR250 . it was observed that:

In granting a writ of 'certiorari' the superior court does not exercise the powers of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. 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 matter was considered again by the Supreme Court in Hari Vishnu v. Ahmad Ishaq : [1955]1SCR1104 where it was observed as follows:

The Court issuing certiorari to quash, however, could not substitute its own decision on the merits, or give directions to be complied with by the Court or the Tribunal. Its work was destructive; It simply wiped out the order passed without jurisdiction and left the matter there.

The effect of the order in the special appeal was therefore, to wipe off the effect of the order of dismissal.

9. Learned Counsel, however, contended that issue of a writ of certiorari in such cases tantamounts to a writ of mandamus directing to do whatever it should do when a writ of mandamus is issued. He has relied on the decision in Ram Babu v. Divisional Manager, L.I.C. : AIR1961All502 . But in that case it was held that what could not be done directly cannot be done indirectly. The learned single Judge hearing the case dismissed the writ petition on the ground that even by issuing a writ of certiorari the Court in effect would be issuing a mandamus for the employer to employ the employee. Section 21(b) of the Specific Relief Act, as it then stood, was also considered. This section reads as follows:

21. The following contract, be specifically enforced:

(a) ...

(b) a contract which runs into such minute or numerous details, or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms; Illustration to Clause (b) : A contracts to render personal service to B; A contracts to employ B on personal service; A, an author, contracts with B, a publisher, to complete a literary work, B cannot enforce specific performance of these contracts.

If the view expressed in this were correct, the petitioner could not have obtained even the writ of certiorari. But that is not the point arising in this case.

10. In the present case the Court has specifically quashed the order of dismissal and has refused to grant relief No. 2 which was the consequential relief. There is no discussion in the judgment in the special appeal about the petitioner's right to get his arrears of salary. The point was never raised in argument. The Court could of course not grant the mandamus prayed for in relief No. 2, as the petitioner had already retired after attaining the age of superannuation. It cannot, in these circumstances, be said that this Court had, while quashing the order of dismissal, impliedly issued a writ of mandamus requiring the State Government to pay to the petitioner the arrears of salary. The State Government cannot therefore be held to have disobeyed any mandamus of this Court.

11. The contention of the Slate Government, on the other hand, is that they have accepted the order of the Court as final and binding between the parties. This is evident, they assert, from their order dated 25-7-1974 to the effect that the State Government has accepted the judgment of this Court as final and has treated the dismissal order as removed from the record. On that basis the State Government awarded to the petitioner the pension, treating the petitioner to be in service till the date of his attaining the age of superannuation. The amount of pension was also calculated according to the salary that the petitioner would have drawn within three years preceding the date of superannuation. The State Government, however, refused to pay the arrears of salary on the plea that if the suit had been filed for recovery of the sum it would be time-barred.

12. Learned Counsel for the petitioner contended that the plea of limitation cannot be raised and in a writ petition the Court can always grant a decree even in those cases where the remedy of suit may have become barred by limitation. He has not been able to cite any decision that may support his contention. Learned Chief Standing Counsel, however, has relied on the case of State of Madhya Pradesh v. Bhailal Bhai : [1964]6SCR261 . In that case a Writ petition had been filed for refund of amounts which had been recovered under a void order. The relevant observations are:

Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where, as in these cases, a person comes to the court for relief under Article 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the court, if it finds that the assessment was void, being made under a void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application. It may however be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the Court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to refuse to exercise in his favour the extraordinary remedy under Article 226 of the Constitution.

13. It is evident that the Court has to grant decree for money as a consequential relief if it intends the respondent to pay any amount to the writ petitioner, and no inference can be drawn from the absence of that decree that the Court intended to pass such, a decree and impliedly did so when it quashed the dismissal order. In a similar case, in Cr. Misc. Case No. 468 of 1971 (All), (Nanak Saran Srivastava v. H.C. Agarwala), this Court considered an application under Section 3 of the (old) Contempt of Courts Act and held that where an order directing compulsory retirement of an employee is quashed and there is no direction for payment of salary, omission to pay it will not amount to contempt of court. Learned Counsel for the petitioner has relied on the decision in Hari Raj Singh v. Sanchalak Panchayat Raj, U. P. : (1968)ILLJ407All . In that case the State Government had not paid the arrears of salary on the ground that the suit for recovery of the same, if filed, would have been barred by limitation and this Court held that the action of the Government was not legal. I am not entering into the merits of the question whether the order of the State Government refusing to pay arrears of salary on the ground that it was time-barred was legally sustainable or not. This Court did not issue any direction to the State Government to pay the arrears of salary and as such it cannot be held that the State Government or its officers had committed contempt of Court, by not paying the amount. The order subsequently passed by the State Government refusing to pay the arrears of salary by which the petitioner is aggrieved may give him a separate cause of action for getting fresh relief, but will not by itself make the State Government liable to punishment under the Contempt of Courts Act.

14. In the result, this petition is dismissed. Notices issued to the respondents are discharged.


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