1. This is an appeal from the order of the learned District Judge of Shahjahanpur by which order he committed Rai Bahadur Pandit Shea Narain Misra, the Chairman of the District Board of Shahjahanpur and Sardar Indar Singh, the engineer and acting secretary of the Board, for 6 months, for contempt of Court. Both these persons appeal against the order of the learned District Judge.
2. There apparently was friction in the District Board of Shahjahanpur between the Chairman and the members of the Board on the one hand, and Mr. Kailashi Nath Kapoor who was secretary and had held that office for some 12 years on the other. The result was that by a resolution dated 22nd June 1932 the Board dismissed Mr. Kailashi Nath from his office alleging as reason therefor, firstly, the economic situation and the desitability of the amalgamating the offices of the engineer and the secretary, and, secondly, that Mr. Kailashi Nath was unsatisfactory, incompetent, and had been creating friction among the members of the Board.
3. On the 23rd June Mr. Kailashi Nath filed a suit for an injuction restraining the defendants from interfering with the discharge of his duties as secretary and prohibiting them from illegally discharging him from that office. I would like to note here that though in the ordinary case of a master and a servant an injunction certainly would not lie restraining a master from dismissing his servant, the remedy of the servant, if he was wrongly dismissed, would be for damages; but in the case of the District Board they are governed by a statute. Under Section 71, District Boards Act, (10 of 1922) the Board may punsih or dismiss a secretary subject to the rules made under the authority of the statute by the Local Government. The rules in accordance with the statute have been framed by the Local Government. Rule 3 enacts as follows:
No officer or servant shall be dismissed without a reasonable opportunity being given to him of being heard in his own defence, etc.
4. It is clear therefore that it would be open for a dismissed servant to allege that the rule had not been complied with and that therefore he was not legally dismissed from his office. He would then be in a position to ask the Court for an injunction. The learned Munsif before whom the suit was filed, issued an interim injunction in terms of the motion. He issued notice to the Board and its Chairman to show cause. On hearing the motion the learned Munsif discharged the interim injunction. That was on 6th July 1932. No sooner was the injunction discharged, than the Chairman of the Board appointed on his own initiative Mr. Indar Singh to act as secretary in place of Mr. Kailashi Nath. The same day however the plaintiff filed an appeal in the District Judge's Court and asked for an injunction. The District Judge passed an order staying the order of the Munsif cancelling the injunction and issued notice to the Board to show cause. That notice was returnable on the 9th July. However on the 8th July the Chairman of the Board filed an application in which he recorded the fact that another secretary had been appointed by him and in which he said the Board was in an awkward position. He asked for the direction of the Court and said that the order passed by the Court would be promptly obeyed. Nothing was however done either upon this application by the Board or on the application of the plaintiff until 23rd July. On that date the learned Judge passed this order:
The order discharging the interim injunction granted by the Munsif was stayed by me on the 6th instant. It stands and shall stand good till the disposal of the appeal. I would not however stand in the way of the District Board's doing what they are not strictly restrained from under the interim injunction, for instance the reconsideration of their resolution as directed by the commissioner. No fresh injunction is, I think, necessary.
5. On the 24th July a meeting of the Board was held to consider the resolution of 22nd June. The Board by a new resolution emphasized that the dismissal of the secretary was entirely due to economic reasons. Nothing in this resolution was said as to the misconduct or unsatisfactory character of the secretary. It appears to me that this new resolution was passed in an attempt to get rid of the District Boards Act rules. It might be argued that if the secretary was dismissed purely for economic reasons, Rule 3 would not apply. However my attention has been directed to Regulation 5 of the bye laws of the District Board Regulation, which provides:
that if any post is retrenched or salary is reduced or if two posts are amalgamated, then the proposal for that purpose would not be carried into effect until any servant of the Board who has served on that post for more than four years has been appointed to another post carrying equal salary and of equal security.
6. In view of this byelaw it is clear that the District Board would be in the same difficulty after their new resolution. On the 25th September the Board held another meeting and a resolution was passed confirming Mr. Indar Singh in the office of secretary of the Board. Finally, on the 11th. October another resolution of the Board was passed appointing Indar Singh as Assessing officer, a position which was formerly held by Mr. Kaiaslhi Nath. Subsequently at the instance of the plaintiff proceedings were taken in the District Judge's Court asking the District Judge to commit the Chairman and Mr. Indar Singh for contempt. As a result of these proceedings both of them were committed as indicated above.
7. On the face of it, it would appear that the District Board and the Chairman have been guilty of wilful contement of the order of the Court dated 23rd July. It is unnecessary for the purposes of this appeal to consider the earlier order of the District Judge of the 6th July. It is said however by counsel for the appellants that the order of 23rd July is vague and it is impossible to base contempt proceedings upon it on the ground that the District Board could not understand the real nature of the order. I have carefully considered the order itself and I am perfectly satisfied that the order is clear. There is no doubt that the original order of the Munsif in clear terms prohibited the District Board from interfering with the employment of the secretary. That order was, of course, discharged by the Munsif himself. This order makes it clear that the discharging order of the Munsif was stayed until the disposal of the appeal. It has been urged by Dr. Sen on behalf of Mr. Indar Singh that it is not possible to stay an order discharging an injunction; that a stay order only applies to executory orders and not to final orders. It is not my intention to discuss this point at length. I am satisfied that the effect of any order may be stayed by a higher Court, i. e., that a higher Court may prevent an order from being acted upon for any length of time which the Court wishes. The real point' in this case is: did the appellants understand what the judge meant by his order, and if they did, have they wilfully disobeyed the order? If is perfectly clear that there was no doubt whatever about the order in the minds of the Board. This can be gathered from an application filed in the lower Court by the Chairman of the District Board himself. The application of 8th July says this:
My vakil Pabu Ram Chander informed me yesterday at about 6 p.m. that an order has been issued from this Court with a temporary injunetion that the order of injunction should continue till 9th July 1932.
8. The wording of the order of 6th July passed by the District Judge is exactly the same as that of 23rd'. July. The Chairman had no difficulty in under-standing the earlier order and equally there could be no difficulty in his understanding the order of 23rd July. The Chairman of the Board knew on the 23rd July that the Board was in terms prohibited by the Court from interfering with the employment of Mr. Kailashi Nath as. secretary. The action of the Board on 25th September in confirming Indar Singh as secretary of the Board was in disobedience of the injunction of the Court. This is an open and wilful contempt, and, the appellants must be shown clearly that if they disobey an order of the Court, they do it at their peril.
9. The only question which remains is one of sentence. I am informed by Sir Tej Bahadur Sapru in the presence of Mr. Shiva Prasad Sinha who appeared in the lower Court that in the lower Court an unqualified apology was given for this contempt to the District Judge. That apology has been repeated in this Court by Sir Tej Bahadur Sapru in the presence of the Chairman of the District Board himself. The apology is full and unqualified and. regret has been expressed. Under these circumstances with regard to the Chairman of the District Board I consider that the dignity of the Court will be. sufficiently upheld by remitting the sentence of imprisonment and imposing a fine of Rs. 500. With regard to the. case of Mr. Indar Singh, I am of opinion that his conviction cannot stand. The injunction in this case was directed to the Board. Mr. Indar Singh at the date of the order was an officer of the Board, he was the engineer, and not a member of the Board at all. It has been argued however by counsel for the respondent that Order 39, Rule 5 covers Mr. Indar Singh's case. Rule 5 reads as follows:
An injunction directed to a corporation is binding not only on the corporation itself, but also on all members and officers of the corporation whose personal action it seeks to restrain.
10. In my opinion, there is nothing in the injunction in this case seeking to restrain the personal action of any officer It does not seek to restrain the personal action of Mr. Indar Singh. The injunction never meant to include him and did not, in fact, do so. It is further contended that Section 3,. District Boards Act, would cover Mr. Indar Singh's case. Section 3 enacts:
Board' means a District Board established under this Act and shall include, in any case where a power is expressed as being conferred, or a duty is being imposed, on a Board, a committee appointed by a Board, and any member, officer or servant of a Board authorised or required under this Act to exercise the power or perform the duty.
11. There is no doubt that a duty has been conferred upon this Board by the injunction; but the Board has not appointed any member or servant to exercise the power or perform the duty. It clearly does not apply to the engineer of the Board in this a case. The engineer has not therefore committed contempt of Court and therefore cannot be punished. The appeal is allowed as regards Mr. Indar Singh and the order for his conviction is discharged. The Chairman of the District Board, Rai Bahadur Pandit Siheo Narain Misra, will pay personally the fine and costs of this appeal. I fix costs in the sum of Rs. 200. The fine and costs will be paid within two months. Failing the payment of the fine and the costs, the Chairman of the Board will serve-two months' simple imprisonment. An application has been made to me for an order as to Mr. Indar Singh's costs. Technically Mr. Indar Singh is not guilty of contempt of Court; but I am afraid there are no merits in his case. He knew all about the injunction and deliberately acted with the Board and assisted the Board in disobeying the order of the Court. Under these circumstances, I make no order as to his costs.
12. The learned District Judge in his judgment has apparently been influenced by the correspondence between the District Board and the Commissioner and the Local Government. He quotes this correspondence at length in his judgment. No expression of opinion by any executive officer is material in a civil or other action. The learned Judge should have considered this matter entirely without reference to the expressed opinion of any Government Officer. The Government Advocate has further raised a point that the District Judge need not be represented in this Court in appeal, and he has asked for his costs to be given to him. This point was taken at the last minute and neither the Government Advocate nor counsel for the opposite party has any authority on this point ready. The matter will stand over. If the Government Advocate finds any authority or wishes to press it as a matter of principle, he is at liberty to apply.