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Suresh Swaroop Srivastava Vs. T.P. Tewari and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1983CriLJ537
AppellantSuresh Swaroop Srivastava
RespondentT.P. Tewari and ors.
Cases Referred(Aligarh Municipality v. E. T. Mazdoor Union) (at
Excerpt:
- - 15. it was next argued that the notice of the order passed by the court to the chief standing counsel or the standing counsel who was present in the courtroom was good enough a notice to the opposite parties whom he represented. it was, however, not possible to charge the opposite parties with committing the contempt of the court's order on the basis of constructive notice through the counsel because in a matter like this the actual knowledge of the order is a must before finding a person guilty for committing disobedience of the orders. as endorsed thereon and it was seen by the secretary forest at 7 p. as also endorsed thereon. as endorsed thereon. on 15-2-1982 and a receipt was duly endorsed by the minister concerned in his own hand on the margin thereof. perhaps, the staff was.....orderr.c. das sharma, j.1. before adverting to the real controversy between the parties it would be convenient to refer to certain facts which are admitted on both sides. the petitioner who is presently working as regional director, social forestry and is a member of the all india forest service was the senior most conservator of forests and, was due for promotion to the post of additional chief conservator of forests since persons senior to him had either retired or had already been promoted. there were two vacant posts of additional chief conservator of forests and a selection for these posts was to be held on 3-2-1982. the petitioner, however filed a representation just a day before the selection requesting that his representation against the adverse entry of 1980-81 be decided first.....
Judgment:
ORDER

R.C. Das Sharma, J.

1. Before adverting to the real controversy between the parties it would be convenient to refer to certain facts which are admitted on both sides. The petitioner who is presently working as Regional Director, Social Forestry and is a member of the All India Forest Service was the senior most Conservator of Forests and, was due for promotion to the post of Additional Chief Conservator of Forests since persons senior to him had either retired or had already been promoted. There were two vacant posts of Additional Chief Conservator of Forests and a selection for these posts was to be held on 3-2-1982. The petitioner, however filed a representation just a day before the selection requesting that his representation against the adverse entry of 1980-81 be decided first and he be given a personal hearing and meanwhile the selection should be postponed. Selection was, however, held at which the petitioner was not selected and two persons junior to him, namely, Sri P. N. Gupta and Sri M. D. Upadhyaya were selected for the post. The petitioner filed a writ petition being No. 732 of 1982 challenging the selection of the said two persons in preference to him and obtained, an interim order in the following terms:

Put up for orders at the time of admission of the writ petition. We direct that in the meantime the result of the proceedings of the Selection Committee for selecting candidates for the post of Additional Chief Conservator of Forests shall not be declared or acted upon.

The Chief Standing Counsel who was representing the State and its officers was present when the order was passed and communication was sent by him conveying to the Government the stay granted by the Court through his letter dated 15th Feb. 1982 which was received by the Government the next day. It did not, however, reproduce the order verbatim but only communicated the following:

Admit. On stay, Result will not be declared.

The petitioner, however, claims to have sent information of the stay order through his letter dated 15-2-1982 to opposite parties Nos. 1 and 2 as also to the Chief Conservator of Forests. This letter, according to him. was sent at about 4 P. M. and thereafter shortly after 6 P. M. a certified copy of the order was also obtained and a photostat copy thereof sent to opposite parties Nos. 1 and 2 as also to the Chief Conservator of Forests. While it has not been disputed that the photostat copies of the stay order were delivered at the office of the opposite parties Nos. 1 and 2 between 6 P. M. and 7 P.M., it is denied by the opposite parties that any earlier communication from the petitioner conveying the order was received by them before the notifications regarding the promotion and posting of Sarvasri P. N. Gupta and M. D. Upadhyaya were issued. Sri M. D. Upadhyaya took over charge of his office the same evening whereas Sri P. N. Gupta assumed office the next day in the forenoon since he was then posted at Dehra Dun and was informed of the order on telephone.

2. The petitioner's contention further was that opposite parties Nos. 1 and 2 were biased against the petitioner . and although the petitioner had delivered a letter at the office of the Forest Secretary opposite party No. 2 at 3.45 P. M. and at the office of the Chief Secretary opposite party No. 1 at 4 P. M. intimating the contents of the stay order, yet in disobedience thereof the formal orders of promotion and posting were issued by them late in the evening after the receipt of the aforesaid letters. These allegations are, however, strongly denied on behalf of the opposite parties Nos. 1 and 2 in their counter-affidavits. According to opposite party No. 1, no letter whatsoever was delivered in his office at 4 P. M, as alleged, and in fact the letter was delivered to his P. A. at 6.10 P. M, which was placed before him in his Dak Fad and was seen by him at 6.30 P.M. and immediately marked to the Forest Secretary for necessary action. Before this, however, orders for promotion and posting had been issued. Similarly, the Forest Secretary opposite party No. 2 denied in his counter-affidavit the receipt of this letter by him at 3.45 P. M. as alleged and, contended that a certified copy of the order was, however, delivered at his office at 6.15 P.M. in his absence and was placed before him on his return to his room at 7 P.M. but the formal orders of promotion and posting had already been issued at about 5.30 P.M. after due approval by the Forest Minister.

3. The main point of dispute between the parties therefore, is as to at what point of time the interim order passed by this Court was communicated to the opposite parties and whether after knowledge thereof effect was given to the result of the Selection Committee and the same was acted upon by issuing the Orders for promotion and posting in disobedience thereof.

4. The allegations against opposite party No. 4 Sri D. B. Misra who was Conservator at headquarters and Assistant to the Chief Conservator of Forests were that in the absence of the Chief Conservator of Forests who was on tour on that date, Sri D. B. Misra was to look after the normal routine work of the Chief Conservator of Forests and an attempt was made to serve the order of the Court on him but he had left his office in the afternoon and on enquiry it was found, that he was camping at Kukrail Forest Rest House. The petitioner accordingly tried to serve the order on the Chief Head Assistant Sri Badri Datt Tewari. opposite party No. 3 in this petition, but he expressed his inability to accept the letter saying that Sri D. B. Misra opposite party No. 4 had asked him not to receive any such communication in the matter. The petitioner on coming to know that opposite party No. 4 was camping at Kukrail Forest Rest House sent his messenger to deliver the letter there but the opposite party No. 4 refused to receive the same on the plea that the office hours were over (it was about 6 P.M.) and the bearer should contact him in his office the next day. It was accordingly delivered to the opposite party No. 4 at 10.45 A. M. the next day. A copy of the order was also delivered to the Forest Minister at 8.30 P.M. on 15-2-1982 and an acknowledgment obtained. Thus so far as opposite parties 3 and 4 are concerned, the contention was that they refused to accept the order of the High Court and in the meanwhile issued the formal orders of promotion and posting and did not take any further steps to check Sarvasri P. N. Gupta and M. D. Upadhyaya from taking over charge of their respective offices as was required in compliance of the interim order of the High Court.

5. It was in these circumstances that opposite parties Nos. 1 to 4 were said to have committed contempt of Court inasmuch as they had intentionally disobeyed the orders of the Court and allowed Sarvasri P. N. Gupta and M. D. Upadhyaya to take over charge of their respective offices in pursuance of the selection, acting upon which had been stayed) by the orders of the Court.

6. Notices were, however, ordered to be issued to opposite parties Nos. 1, 2 and 4 only. Regarding opposite party No. 3 this Court had ordered on 3-3-1982 that no notice shall be sent to him. Thus separate counter-affidavits have been filed by opposite parties Nos. 1, 2 and 4 to which rejoinder-affidavits have been filed by the petitioner. Replies to the petitioner's rejoinder-affidavits have also been filed by the opposite parties Nos. 1, 2 and 4. Opposite party No. 2 had also annexed with his counter-affidavit copies of the affidavits filed by Sri S.P. Sinha, Sri M. C. Joshi and Sri C. L. Bhatia in proceedings initiated by the petitioner for restoration of status quo ante after Sarvasri P. N. Gupta and M. D. Upadhya had taken over charge.

7. Sri S.P. Sinha's role in the matter was that he was called by the Chief Standing Counsel in connection with the Pairvi of the case on 15-2-1982 and he had contacted the chief standing counsel at about 1 P. M. According to Sri S.P. Sinha he was informed by the Chief Standing Counsel that the petition had been admitted and declaration of the result had been stayed, but he had requested the Chief Standing Counsel to communicate those orders directly to the Government as firstly he was not an officer posted in the Secretariat and came only from the Office of the Chief Conservator of Forests at the call of the Chief Standing Counsel and secondly he had to go to the income-tax office in connection with his personal case. He accordingly did not contact opposite parties Nos 1, 2 and 4 in order to communicate that the Chief Standing Counsel had told him. It was in order to bring these facts on record that the opposite party No. 2 had filed a copy of the counter-affidavit of Sri S.P. Sinha filed by him in the proceedings relating to restoration of status quo ante.

8. Sri M. C. Joshi was Secretary to the Government in the Personnel Department and had stated, about the procedure for selection to the aforesaid posts of the Additional Chief Conservator of Forests and the time at which the result of the selection was communicated to the Secretary Forest for further necessary action. Sri C. L. Bhatia was the Chief Conservator of Forests (Planning) and in the absence of the Chief Conservator of Forests he had signed the formal orders of promotion and, posting on their being received from the Government. To the counter-affidavits of Sri C. L. Bhatia and S.P. Sinha rejoinder-affidavits have been filed by the petitioner. There is no such rejoinder-affidavit to the counter-affidavit of Sri M. C. Joshi.

9. Opposite party No. 1 was the Chief Secretary to the Government. He denied that Sri S.P. Sinha had ever contacted him or had communicated to him the Court's order in any manner. In fact, the petitioner's contention also was that presumably Sri S.P. Sinha had informed the officers concerned about the stay order since it was his duty to do so when he had attended the court at the call of the Chief Standing Counsel. There is no positive averment by the petitioner that Sri S.P. Sinha did speak to the Chief Secretary or the Forest Secretary or even to opposite party No. 4 at any time on 15-2-1982 about the stay order. Opposite party No, 1 also contended that it was at about 6.30 P. M. that he for the first time came to know of the stay order when a photostat copy of the same was placed before him and which he immediately marked to the Forest Secretary for necessary action. It was denied that he was taking undue interest in the matter or that he had managed for the immediate taking over of the charge by Sarvasri P. N. Gupta and M. D. Upadhyaya of their respective posts, the contention being that it was within the domain of the Administrative Department exclusively to issue orders after the selection had been made and its result communicated by the Personnel Department,

10. The Forest Secretary O. P. No. 2, in his counter-affidavit also denied the allegations of bias and stated that the petitioner's representation dated, 2-2-1982 for postponement of the meeting of the Selection Committee was received by him on 12-2-82 as it was addressed to the Forest Minister by the petitioner and long before that the process of selection had already been completed. It was denied that any information about the stay orders was received from Sri S.P. Sinha or through any letter of the petitioner either by the deponent or by his office at about 4 P. M. as alleged and the contention was that the official communication from the Chief Standing Counsel was received the next day i.e. on 16-2-1932 indicating only that the petition had been admitted and the result was not to be declared, A photostat copy of this letter has been filed as Annexure J-2 to the counter-affidavit of O. P. No 2. He claimed, to have come to know about the order for the first time at 7 P. M. as a certified copy of the order was delivered in his office to his P. A. at 6,15 P. M. in his absence. The proceedings of the selection committee were approved by the Finance Minister on 10-2-1982 and by the Chief Minister on 14-2-1982 and on the morning of 15-2-1982 at about 10 a telephonic message was received from the Secretary to the Chief Minister mentioning that the Chief Minister had directed the two vacancies of the Additional Chief Conservator of Forests to be filled by Sarvasri P. N. Gupta and M. D. Upadhya selected for the purpose positively that very day and compliance should also be reported to him by the evening that day.

The confidential d. o. letter from the Secretary Personnel Sri M. C. Joshi conveying the approval of the selection of Sarvasri P. N. Gupta and M. D. Upadhyaya for these posts was received at 10.30 A. M. on 15-2-1982. Thereafter the approval of the Chief Secretary was obtained and since the Forest Minister was out of station and was to come back at 4 P. M., orders were kept ready for issue so that on his return to Lucknow they could be issued. Verbal directions were sent to opposite party No. 4 to call the selected officers to Lucknow in order to take over charge and also to inform them on telephone about the selection. In pursuance of the Secretary Personnel's letter, formal orders were also sent to the Chief Conservator of Forests. The Forest Minister, however, returned to Lucknow at about 4.30 P. M. as the train was late and the papers were placed before him at 5.15 P. M. in the Minister's Chambers. After a brief discussion, they were approved by the Forest Minister who directed that charge should be made over to the two officers immediately in compliance with the orders of the Chief Minister the same day.

Opposite party No. 2 thereafter telephonically informed Sri C. L. Bhatia, the Chief Conservator of Forests (Planning) to ensure immediate compliance adding that formal orders of posting had already been issued and were on the way through a special messenger. The file was thereafter sent to the Chief Minister reporting compliance with reference to his earlier orders communicated at about 10 A. M. through his Secretary. Thus according to opposite party No. 2 even the formal orders of posting of Sri P. N. Gupta as Managing Director of U. P. Forest Corporation and of Sri M. D. Upadhaya as Additional Chief Conservator of Forests had been issued at 5.30 P.M. on 15-2-1982 much before the knowledge of the stay orders of the Court which he came to know only at about 7 P. M. when the certified copy of the order was placed before him. On receipt of the communication from the Chief Standing Counsel on 16-2-1982 he sent a letter to the Chief Conservator of Forests conveying the High Court's order for necessary action but he was informed immediately through a letter of the same date that the respective charges have already been taken over by Sarvasri P. N. Gupta and M, D. Upadhyaya.

11. Opposite party No. 4 who was Assistant to the Chief Conservator of Forests in his counter-affidavit stated that at about midday on 15-2-1982 the Forest Secretary had informed him over the phone about the approval of the selection of Sarvasri P. N. Gupta and M. D. Updhyaya and had desired that they should be called to Lucknow to take over charge immediately. A letter from the Government was also received by him declaring the result of the proceedings of the Selection Committee and thereafter he booked a telephonic call to Sri P. N. Gupta who was at Dehra Dun. The call matured at 13-52 hours and thereafter at about 3 P.M. he left for Kukrail and returned to Lucknow only at 10.30 A.M. the next day. He denied that Sri S.P. Sinha had ever had a talk with him that day or that the petitioner's letter was brought to his knowledge at any time before 6 P. M. at Kukrail when the petitioner's messenger himself went with that letter. He desired the messenger to bring the letter the next day in office as he was camping at Kukrail and the office hours were also over.

According to him ho was not authorised to issue any orders of promotion and posting without the approval of the Chief Conservator of Forests who was out on tour and in his absence he would have at the most brought the matter to the notice of the next higher authority, namely, the Forest Secretary. But that too was not necessary in this case because the letter proposed to be delivered to him was also addressed to the Forest Secretary and the messenger had told the deponent that the petitioner had gone to deliver the letter to the Forest Secretary already. Thus his contention was that he had done nothing in connection with the declaration of the result or otherwise acting thereon after the receipt of the intimation about the stay order either at 6 P. M. When it was proposed to be delivered, to him at Kukrail or after 10.30 A. M. the next day when the letter was physically delivered. Since Sri M. D. Updhyaya was locally posted at Lucknow he took over charge in the afternoon sometime after 5.30 when the formal orders were issued by the Government and the Chief Conservator of Forests (Planning) Sri C. L. Bhatia.

12. Opposite party No. 3 was not called upon to file any reply as notices were not issued to him but it has been stated in the counter-affidavit of Sri S.P. Sinha that at about 4 P. M. when he came to office after attending to his matters in the income-tax office the petitioner's messenger met him, but Sri B. D. Tewari opposite party No. 3 informed the messenger that opposite party No. 4 had left for Kukrail and would come back only the next day and so the letter may be delivered to him there. It was denied that the letter was tendered to Sri B. D. Tewari opposite party No. 3 or was shown to him in any manner, or that Sri B. D. Tewari had told the messenger about any instructions having been given to him by opposite party No, 4 not to take delivery of any letter relating to the petitioner. The messenger was Sri Hari Kant. Conservator of Forests himself and consequently it was suggested that nobody could refuse to accept the service of the letter if the same had been tendered to Sri B. D. Tewari and because opposite party No. 4 had gone to Kukrail the messenger readily left with that letter.

13. The entire controversy therefore, hinges on the decision of the point as to whether opposite parties Nos. 1 and 2 had been informed of the court's stay order before the formal orders for promotion and posting were issued. Another point for consideration would, be whether even if the orders had been issued, was it not necessary for the opposite parties to take steps to prevent Sarvasri P. N. Gupta and M. D. Upadhyaya from taking over charge of their respective offices.

14. It was firstly argued on behalf of the petitioner that Sri S.P. Sinha was found to inform the opposite parties about the contents of the stay order since the Chief Standing Counsel had communicated to him the matter at about 12.30 or 1 P. M. the same day. Sri S.P. Sinha has stated in his counter-affidavit which is Annexure J-4 to the counter-affidavit of opposite party No. 2, that he had his personal case in the income-tax office and therefore, after contacting the Chief Standing Counsel at about 1 P. M. he immediately left for the income-tax office telling him to communicate the order directly to the Government and which the Chief Standing Counsel appears to have done through a letter which admittedly reached the Government the next day and which only stated, that the petition had been admitted and the result was not to be declared-This letter did not mention that the result was not to be acted upon also and consequently even if Sri S.P. Sinha was to communicate to concerned officers anything about the stay order it would have been nothing more than stating that the petition had been admitted and the declaration of the result had, been stayed. The result of the selection was admittedly approved by the Finance Minister on 10-2-82 and by the Chief Minister on 14-12-1982 and had been communicated through a top secret letter of the Secretary Personnel to the Secretary Forest at about 10.30 A. M. as will be apparent from the counter-affidavit of Sri M. C. Joshi and the letter Annexure J-6 to the counter-affidavit of opposite party No. 2.

In pursuance of this letter the Forest Secretary had also sent a letter to the office of the Chief Conservator of Forests and the opposite party NO. 4 was told on telephone about the contents of the letter so that he could ask the two officers concerned to be available at Luck-now to take over charge as the Chief Minister had, desired compliance by the same evening. Even the petitioner has not contended that Sri S.P. Sinha had in any manner communicated the contents of the stay order to opposite parties Nos. 1 and 2 or even to opposite party No. 4 although it has been stated that as in duty bound he should have communicated these orders and presumably he did, but in view of a categorical denial in their counter-affidavits by the officers concerned and also by Sri S.P. Sinha, it cannot he held that he had intimated to them either that the result of this selection was not to be declared or that it was not to be acted upon. The latter part of the order was virtually not in his knowledge because the Chief Standing Counsel did not tell about it nor does it find mention in the communication sent from his office which reached the Government the next day.

15. It was next argued that the notice of the order passed by the Court to the Chief Standing Counsel or the Standing Counsel who was present in the courtroom was good enough a notice to the opposite parties whom he represented. It was, however, not possible to charge the opposite parties with committing the Contempt of the Court's Order on the basis of constructive notice through the counsel because in a matter like this the actual knowledge of the order is a must before finding a person guilty for committing disobedience of the orders. Contempt proceedings are in the nature of quasi criminal proceedings and no person can be found guilty for disobedience of the orders unless the orders are either formally served or at least the concerned officers have knowledge of the orders otherwise.

16. This brings us to the question as to at what point of time the orders of the Court were communicated to the opposite parties either through the petitioner's letter or by delivering a certified copy or a photostat copy of the order.

17. So far as opposite party No. 1 is concerned, the contention was that a letter Annexure 5 to the affidavit was sent to the Chief Secretary sometime before 4 P. M. and a photostat copy of the stay order was also annexed to it. Annexure 5 is a copy of letter (No. 16/ PC dated 15-2-1982 addressed to three persons, namely, 1. the Secretary to the Government in the Forest Department 2. the Chief Secy, to the U. P. Government and 3. the Chief Conservator of Forests. In para. 3 of this letter it has been mentioned that a photostat of the certified copy of the stay order from the Hon'ble High Court is attached. Regarding this contention, opposite party No. 1 in para. 8 of the counter-affidavit has categorically stated that no letter whatsoever was delivered to the deponent at 4 P. M. and, in fact, it was delivered to the deponent's P. A. after office hours at about 6.10 P. M. and the same was placed before the deponent in the Dak Pad at about 6.30 P. M. when he marked it to the Forest Secretary for necessary action. This fact has not been denied by the petitioner in his rejoinder-affidavit where he has merely said that even if the letter in question came to the notice of opposite party No. 1 at 6.30 P.M. it was incumbent on his part to ensure compliance of the High Court's order instead of simply marking the letter to the Forest Secretary. The fact, therefore, remains that the matter regarding stay order was never brought to the notice of the Chief Secretary before 6.30 P. M. and as will appear from the subsequent paragraphs the formal orders of the Government regarding the promotion and posting of Sarvasri P. N. Gupta and M. D. Upadhyaya had already been issued before that.

Thus so far as the issuance of the Government orders regarding posting are concerned, in the first instance, the Chief Secretary was not concerned, with the matter, and secondly, the orders had already been issued before the receipt of this letter. As to the second part of the contention, that opposite parties Nos. 1 and 2 should have stopped Sarvasri P. N. Gupta and M. D. Upadhyaya from taking over charge after the receipt of the orders, I will refer to the contentions of the parties later. The stay order was in two parts : firstly the result of the proceedings of the Selection Committee was pot to be declared, and secondly, it was not to be acted, upon. So far as the declaration part is concerned, the result of the selection made had already been approved by the Finance Minister on 10th February and the Chief Minister on 14th February and was officially communicated by the Secretary Personnel at about 10.30 A. M. on 15-2-1982 through a top secret d. o. letter addressed to the Forest Secretary who on his part had also issued a similar d. o. letter addressed to the Chief Conservator of Forests almost at the same time and had further telephonecally informed opposite party No. 4 so that the concerned officers could be called to the headquarters to take over charge in pursuance of the directions of the Chief Minister received in the earlier part of the day over the phone.

It was argued by the petitioner's learned Counsel that the declaration of result was not complete by the issuance of the confidential d. o. letter by the Secretary Personnel, but in any case, there is no reason to hold that the result was not declared even when the Forest Secretary issued a similar d. o. letter addressed to the Chief Conservator of Forests because that was neither confidential nor in any other manner could it be said that it was not meant to be acted upon. In fact, formal orders were to be issued from the office of the Chief Conservator of Forests but they had to wait till the actual posting orders were also communicated by the Government, This d. o. letter only declared the result inasmuch as the selection of these two persons to the post of Additional Chief Conservator of Forests was made known to all concerned. It was also argued that the concerned officers had not been intimated about the result and consequently the declaration of the result was not complete till formal notification of their posting was issued through Annexure 14 and, which was definitely done later in the evening. It is difficult to agree with this contention so far as the declaration of the result is concerned although the places of posting may not have been declared to the concerned officers by that time.

18. The main attack in the petition had been on the acts and omissions on the part of opposite party No. 2. It was contended by the petitioner that he had informed the Forest Secretary of the Court's orders by delivering a letter at about 3.45 P. M. conveying the High Court's stay order. Again, a certified copy of the order was said to have been delivered at the office of Forest Secretary at 6.15 P. M. Regarding this, opposite party No. 2 has categorically denied in para. 13 of his counter-affidavit the fact of any such letter having been received by him or in his office at 3.45 P. M. and the assertion was that the same had been delivered in the office at 6.15 P. M. in the deponent's absence and that the deponent came to know of it at 7 P. M. when he returned to his room. Annexure J-5 is a photostat copy of the stay order which indicates that his office received this copy at 6.15 P. M. as endorsed thereon and it was seen by the Secretary Forest at 7 P. M. as also endorsed thereon. There is nothing from the side of the petitioner to indicate that his letter No. 16/PC addressed to the Forest Secretary had been delivered to him at any time, be it 3.45 P. M. or any other hour, No receipt appears to have been obtained for the delivery of the letter although it appears that the petitioner and his messenger were particular about obtaining receipts regarding delivery of such letters, Annexure 4 to the petition is a photostat copy of the receipt given by the Private Secretary to the Forest Secretary at 6.15 P.M. as endorsed thereon. Annexure 7 to the petition is another photostat copy of the receipt indicating that the letter (No 16/PC dated 15-2-1982) was received by the Chief Conservator of Forest's office at 10.45 A. M. on 16-2-1982.

Annexure 7 purports to be a pro forma of a receipt on behalf of opposite parties Nos. 1, 2 and 4 but against the names of opposite parties Nos. 1 and 2 there is no endorsement about receipt indicating thereby that nobody had either tendered these letters to the persons concerned near about 4 P. M. or, in any case, receipt was not obtained from them about the same. It is also important to note that this pro forma was drawn to indicate that the letter No. 16/PC dated 15-2-1982 was received by the three officers concerned on 15-2-1982 itself as typed out in the body of the receipt itself, but the fact remains that there is no endprsement whatsoever either on this pro forma or separately to indicate if these letters had at any time been delivered to the opposite parties Nos. 1 and 2. That the petitioner was keen to obtain receipts from concerned officers and the Ministers is also apparent from Annexure 8 to the petition which is another photostat copy of the stay order served on the Forest Minister at his house at 8.30 P.M. on 15-2-1982 and a receipt was duly endorsed by the Minister concerned in his own hand on the margin thereof. Perhaps, the staff was not present at the time and, consequently the Minister himself endorsed receipt on another copy of the order. If therefore the petitioner and his messenger were particular about obtaining receipts and they knew the importance and urgency of the matter, there is no reason why receipts were not obtained from opposite parties Nos. 1 and 2 of their personal staff as was done in the case of certified copies of the order referred to above. It may be that all the three letters were delivered to a messenger for being made over to the officers concerned, and the messenger was particular to serve it on opposite party No. 4 who was not available in his office and had gone to Kukrail and consequently the letters remained undelivered to the other two officers. The messenger certainly reached Kukrail at about 6 P.M. or so when he was asked to deliver the letter the next day in office as the opposite party No. 4 was camping at Kukrail and the office hours were over. Consequently it has not been established that the letter was delivered at the office of opposite party No. 2 at about 3.45 P. M. or so as alleged, or an intimation of the stay order was given to opposite party No. 2 or his office at any time before 6.15 P. M.

19. This takes us to the consideration of another point, namely, as to at what point of time the formal orders of promotion contained in Annexure 13 were issued by the Government. It was argued before me that the Forest Minister was out of station and the Forest Secretary could meet him only at about 6 P. M. and consequently the orders could have been issued not before 7 P.M. since they would have been cyclostyled after the approval. A reference to paragraph 17 of the counter-affidavit of opposite party No. 2 will indicate that the Secretary to the Chief Minister had conveyed the latter's orders at 10 A, M. that the two posts should be filled up by the appointment of Sarvasri P. N. Gupta and M. D. Upadhyaya that very day and compliance reported by the evening. The Forest Secretary was therefore, keen to have the orders issued and it is for this reason that immediately on the receipt of the d. o. letter from the Secretary Personnel he sent a d. o. letter to the Chief Conservator of Forests and a telephonic call to opposite party No. 4 to inform the concerned officers to come and take over charge immediately.

A call was accordingly booked by 0. P. No. 4 at 1 P. M. to Dehra Dun and it matured within an hour. The Forest Minister arrived at about 4.30 P. M. and called the Secretary Forest at 5.15 P. M. when after a brief discussion the orders were approved, and it was further observed by the Forest Minister that charges should be made over to the two officers immediately in compliance with the Chief Minister's orders. Para. 24 of the counter-affidavit will indicate that at 5.30 P.M. the Chief Conservator of Forests (Planning) Sri C. L. Bhatia was informed over the phone about the approval of the posting and he was told that the relevant Government order had been issued and despatched to him through a special messenger. Appendix J-10 to the counter-affidavit of opposite party No. 2 is the copy of the affidavit of Sri C. L. Bhatia which indicates that at about 5,30 P. M. he was informed by the Secretary Forest that Government orders about the posting of the two officers had been issued and despatched through a special messenger to him and as desired he also booked a call to Sri P. N. Gupta at Dehra Dun at 5.38 P. M. and informed him about his posting and directed him to come and take over charge immediately. Thus it will appear that even the formal orders of posting had been issued at about 5,30 P. M. and thereafter at 5.38 P. M. Sri P. N. Gupta was informed over the phone at Dehra Dun.

This will be evident from a certificate of the telephone authorities filed by the petitioner himself as Annexure 12 indicating that Sri C. L. Bhatia had talked to Sri P. N. Gupta at Dehra Dun between 17.38 and 17.41 hours on 15-2-1982. It was argued that the orders could not have been cyclostyled between 5.15 P.M. and 5.30 P. M. within fifteen minutes, but it was stated during arguments on behalf of the opposite parties that the orders were already kept ready to be issued immediately after the approval of the Finance Minster because the Chief Minister had desired compliance the same day. It was also argued for the petitioner that presumably some changes were made by the Forest Minister in the postings and consequently the orders might have been cyclostyled again, but in the absence of specific averment in the petition, the opposite parties were not called upon to clarify the position. In this view of the matter it cannot be held that opposite party No. 2 was informed of the stay orders before 7 P. M. whereas the notification had already been issued at about 5.30 P. M. and Sri P. N. Gupta was even telephonically informed of the orders at 5.38 P. M. by Sri C. L. Bhatia.

20. Now so far as opposite party No. 4 is concerned, it has not been disputed that he left his office at about 3 P. M. and went to Kukrail where he was camping when the letter No. 16/PC was proposed to be delivered to him. His contention in the counter-affidavit was that actually he was looking after only the routine work of the office in the absence of the Chief Conservator of Forests who was out of station on that date, and even if he had received any orders, he could not of his own do anything except placing the matter before the next higher officer, namely, the Forest Secretary, and for this reason he had told the messenger who brought the letter to him at 6 P. M. that the office hours were over and he was camping at Kukrail and therefore, the letter may be delivered to him the next day in his office. He was only a Conservator of Forests and was working as Assistant to the Chief Conservator of Forests.

Obviously, therefore, if formal orders had already been issued by the Govt. at 5.30 P. M. and were communicated to the concerned Officer at 5.38 P. M. by the Chief Conservator of Forests (Planning) who was looking after the work of the Chief Conservator of Forests in the letter's absence on tour, opposite party No. 4 could not have on his own cancelled or withdrawn the orders but would have at the most put up the matter to the Forest Secretary or other higher officer. His contention was that the letter a copy whereof was proposed to be delivered to him, was also addressed to the Forest Secretary and, as the messenger had told him that the petitioner had gone to the Forest Secretary to deliver the letter, he did not consider it necessary to take delivery of the letter at Kukrail and hence had directed him to deliver it in the office the next day. Thus so far as the declaration of the result or acting thereon is concerned, opposite party No. 4 had virtually done nothing after 6 P. M. even if it be assumed that he had acquired knowledge of the stay order at that point of time.

21. The next day when the letter was delivered to him in his office it was already too late because Sri P. N. Gupta had already taken over charge of the office of the Managing Director, U. P. Forest Corporation (a post which is held by an officer of the rank of Additional Chief Conservator of Forests.) The position as stated in the counter-affidavit is that Sri P. N. Gupta went straight to the office of the Forest Corporation when he came from Dehra Dun and having taken over charge there reported at the Chief Conservator's office and by then the Circular letter Annexure 16 to the petition had already been issued from the office of the Forest Corporation intimating that Sri P. N. Gupta had taken over charge as the new Managing Director and all confidential letters and d. o. letters may be addressed to him. When therefore the Government after receiving the Chief Standing Counsel's letter on 16-2-1982 communicated the stay order to the Chief Conservator of Forests on 16-2-1982 itself reply was immediately sent to the Government intimating that Sri P. N. Gupta had already taken over charge of his office.

It was argued on behalf of the petitioner that Sri P. N. Gupta could not have taken over charge without first reporting at the office of the Chief Conservator of Forests even though he was appointed as Managing Director of the Forest Corporation U. P. That could have been undoubtedly one way of doing things but if Sri P. N. Gupta who had already been intimated of the orders over the phone chose to proceed direct to the office of the Forest Corporation and took over charge immediately, it cannot be said that this was done after receiving intimation of the stay orders of the High Court. In the first instance, the orders were not addressed to Sri P. N. Gupta and, secondly there was no opportunity for opposite party No. 4 to have communicated the orders of the Government regarding the stay either to Sri P. N. Gupta or to the office of the Forest Corporation. Sri M. D. Upadhyaya had. however, already taken over charge in the afternoon of 15-2-1982 as he was present at Lucknow where he was posted, and there is nothing to show that he had taken-over charge after the receipt of the stay orders by any of the opposite parties.

22. It was next argued that the second part of the stay order which directed the opposite parties not to act on the result of the Selection Committee should have been complied with by them by taking such action as would have prevented Sri M. D. Upadhyaya and Sri P. N. Gupta from taking over charge. From the facts and circumstances which have been referred to above in quite some detail, it is obvious that these two officers had taken over charge without there being any opportunity available to the opposite parties Nos. 1, 2 and 4 to communicate to them the orders of the court before they had actually taken over. Undoubtedly, it appears on the face of it, that everything was done in a great hurry and this circumstance is capable of creating a feeling that this was done in order to frustrate the stay orders which were likely to be passed on the writ petition of the petitioner, but the mere existence of such a feeling or suspicion in the mind would not be enough to hold the opposite parties guilty for committing contempt of the Court's order. It is likely that the Government might have been apprised of the chances of a writ petition coming up before the Court for stay orders and consequently the approval of the Chief Minister was obtained, on 14-2-1982 and on the morning the Chief Minister ordered compliance to be made the same day and also wanted compliance to be reported by the evening. The officers acted in a hurry for that reason. Since contempt proceedings are of a quasi-criminal nature, it is essential to establish in some manner that the concerned officers had knowledge of the stay order even if they were not formally served with a copy thereof.

23. Reliance was placed by the petitioner's learned Counsel on the following observations of Oswald on Contempt of Court which were approved by the Supreme Court in its various pronouncements, namely : AIR1962SC1089 (Hoshiar v. Gurbachan) : 1968CriLJ1514 (Bunna Prasad v. State of U. P.) and : 1970CriLJ1520 (Aligarh Municipality v. E. T. Mazdoor Union) (at p. 1350 of AIR) : (at p. 1517 of Cri LJ).

The judgment or order should be served on the party personally, except in the following cases : (1) Prohibitive orders, the drawing up of which is not completed....

In order to justify committal for breach of prohibitive order it is not necessary that the order should have been served upon the party against whom it has been granted, if it be proved that he had notice of the order aliunde, as by telegram, or newspaper report, or otherwise, and knew that it was intended to be enforced, or if he consented to the order, or if he was present in Court when the order was pronounced, or when the motion was made, although he left before the order was pronounced.' There is no doubt that the above principle was approved by their Lordships of the Supreme Court in all these cases but again it is a question of fact whether the officers concerned even though they had not been served with the copy of the order of the Court had notice of the order aliunde. In the case if Bunna Prasad referred t0 above the Supreme Court had also made the following observations (at p. 1351):...It is also clear that in such matters those who assert that a person had knowledge of the order must prove this act beyond all reasonable doubt. If there is any doubt, the benefit ought to be given to the person charged with contempt of court---...

24. Applying this test to the instant case, it will appear that it has not been established beyond reasonable doubt that the officers concerned had acquired knowledge of the stay order before they declared the result of the selection or acted upon the same inasmuch as they issued the relevant orders of promotion and posting of Sarvasri P. N. Gupta and M. D. Upadhyaya.

25. The last contention on behalf of the petitioner was that without the approval of the Chief Minister, the orders of posting could not have been issued. Under the Rules of Business, approval of the Chief Minister for the posting of a Head, of Department is required and this position has not been disputed on behali of the opposite parties. It was, however, argued that the post's held by Sarvasri P. N. Gupta and M. D. Upadhyaya were not posts of Heads of Department but they were only of Additional Heads o(sic) Department. A distinction was drawn between the Heads and Additional Heads by making a reference to the Rules of Business which are currently in force and those which were in force during the President's rule. In the latter Rules, there is a reference to Heads and Additional Heads of Department whose postings required, approval of the Governor, but in the Rules now in force, the words denoting Additional Heads of Department have not been used. For the petitioner it was argued that even the Conservator of Forests is a Head of Department and reliance was placed on the provisions of the Financial Hand-Book where all Conservators of Forests are declared Heads of Department. On that analogy it was argued that the Additional Chief Conservator of Forests should also be regarded as Head of Department. On the basis of analogy, however this argument cannot be supported because it is a question of fact whether these two officers are Heads of Department or not.

Apparently the Managing Director of a Corporation should be a Head of Department, but unless it is shown to be so, it cannot be so held, merely because all Conservators of Forests are Heads of Departments within their respective charge. Assuming, however, that the matter required approval of the Chief Minister, it could not he relevant so far as the question of contempt is concerned, because in this context what is to be seen is whether a breach of the Court's order was committed and not whether the order issued are in accordance with the Rules of Business or not. It was argued that in anticipation of the Chief Minister's approval the orders were issued and later the file was submitted the same evening to report compliance in pursuance of the Chief Minister's telephonic orders received at 10 A. M. The Forest Minister had also directed the Forest Secretary to ensure compliance of the Chief Minister's order in anticipation of the formal approval of the Chief Minister as regards posting. The selection had, however, been approved already on 14-2-1982. That being so, the matter about the strict observance of the Rules of Business loses its importance in the context of disobedience of the Court's stay order.

26. It may also be observed that opposite parties Nos. 1, 2 and 4 have in the very beginning of their respective counter-affidavits tendered their unqualified apology and stated that they had highest regard for the orders of the Court and had neither in the past committed any disobedience of Court's orders nor could they flout the orders in any manner. However, in view of the observations made above, the question of tendering apology or its acceptance does not arise.

27. In the result, therefore, the petition fails and is accordingly dismissed but there shall be no order as to costs.


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