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Shanker Bux Singh Vs. Avas Ayukt, U.P. Avas Evam Vikas Parishad - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1983CriLJ1328
AppellantShanker Bux Singh
RespondentAvas Ayukt, U.P. Avas Evam Vikas Parishad
Cases ReferredButalia H. S. v. Subhash Kumar Saksena
Excerpt:
- - therefore, applications for vacation of the interim orders as well as for clarification and modification of the interim orders had been moved. 4. it is by now well-settled that the applicant who moves the court seeking punishment of the opposite party on the ground that the opposite party has committed contempt of court must establish the grounds and show that the opposite party has deliberately disobeyed or flouted an order of the court. these facts clearly go to indicate that the opposite-party has not disobeyed any order of this court. 5. the applicant having failed to make out a case against the opposite-party under the provisions of the contempt of courts act, his application is liable to be rejected......the said application and, the superintendent of works, dcu, vara-nasi forwarded the same to the opposite party along with the letter dated 2nd july, 1981 which was received by the office of opposite-party on 7th july, 1981. he again gave an application on 4th august, 1981 with the certified copies of the stay orders dated 17th july, 1981 and 31st july, 1981 which were received by the receipt clerk of the office opposite party. his further contention is that on 11th june, 1981 he had, applied for leave for two weeks and it is on that very date that the office in charge of the office of superintendent of works gave him the letter dated 11th june, 1981. on these facts the applicant has, therefore, contended that the opposite party who is avas ayukt, u.p. avas evam vikas parishad, lucknow.....
Judgment:

T.S. Misra, J.

1. Shanker Bux Singh, the present applicant was an employee of Avas Evam Vikas Parishad. His services were terminated by an order dated 4th June, 1981 wherein it was written that instead of one month's notice one month's salary shall be payable to him. That order was served on the present applicant on 11th June, 1981. It has been said in the counter-affidavit filed in this case that the applicant was paid a sum of Rs. 640.70 by cheque towards Ids one month's salary in lieu of one month's notice. This fact has not been denied by the applicant in his rejoinder-affidavit. On the other hand, it has been said by the applicant that the cheque delivered to him was not cashed by him.

2. The present applicant filed a writ petition No. 2957 of 1981 in this court seeking the quashing of the order dated, 4th June, 1981 whereby his services had been terminated. On his application for interim relief an order was passed by a learned single Judge of this Court on 23rd June, 1981 in the following terms:

'List along with the writ petition. Till 10th of July, 1981 the operation of the impugned order dated 4-6-1981 contained in Annexure No. 3 shall remain stayed.

Sd/-

23-6-81

Again on 17th July, 1981 the application for interim relief was placed before the court for further orders and the following order was passed:

The learned Chief Standing Counsel prays for and is allowed two weeks' fur-!her time to file counter-affidavit. Let the counter-affidavit be filed by 31-7-1981. The operation of the impugned order elated 4-6-1981 shall remain stayed till 31-7-1981. List on that date.

The stay application was again placed before the court on 31st July, 1981, when the following order was passed:

No counter-affidavit has been filed. The operation of the impugned order dated 4-6-1981 shall remain stayed until further orders.

The applicant has contended, that he gave an application daled 2nd July, 1981 along with the certified copy of the stay order dated 23rd June, 1981 in the office of the Superintendent of Works DCU, Varanasi and the receipt clerk, Sri Ram Narain, received the said application and, the Superintendent of Works, DCU, Vara-nasi forwarded the same to the opposite party along with the letter dated 2nd July, 1981 which was received by the office of opposite-party on 7th July, 1981. He again gave an application on 4th August, 1981 with the certified copies of the stay orders dated 17th July, 1981 and 31st July, 1981 which were received by the receipt clerk of the office opposite party. His further contention is that on 11th June, 1981 he had, applied for leave for two weeks and it is on that very date that the office in charge of the office of Superintendent of Works gave him the letter dated 11th June, 1981. On these facts the applicant has, therefore, contended that the opposite party who is Avas Ayukt, U.P. Avas Evam Vikas Parishad, Lucknow has committed contempt of court because he has disobeyed the aforesaid orders passed by this court in the said writ petition.

2. The petition has been opposed, and the opposite party has filed the return and his counter-affidavit. A rejoinder-affidavit has also been filed. It has been submitted in the counter-affidavit that an application was moved before this court on 17th Sept. 1981 seeking clarification of the stay order and also praying that the said stay order be vacated. Another application to the same effect was moved, on 9th November, 1981 and when no order were passed on both the aforesaid applications, a third application was moved on 11th February, 1982. Ultimately all these three applications were heard together and the interim stay order was vacated by this court on 5th April, 1982. The opposite-party has hence contended that he has not disobeyed any order passed, by this court and had in fact never intended to disobey the same. Further, it has been stated in the counter-affidavit that since the order dated 4th June, 1981 had been implemented and the applicant was not in the employment of the Board and in the interim orders passed by this court there was no direction to the opposite party for reinstatement of the applicant or for payment of salary. Therefore, applications for vacation of the interim orders as well as for clarification and modification of the interim orders had been moved.

3. I have heard the learned Counsel for the parties and have carefully gone through the affidavit, counter-affidavit and the rejoinder-affidavit. I have also perused the aforesaid; interim orders passed by this Court in the said, writ petition.

4. It is by now well-settled that the applicant who moves the court seeking punishment of the opposite party on the ground that the opposite party has committed contempt of court must establish the grounds and show that the opposite party has deliberately disobeyed or flouted an order of the court. The applicant in the instant case urged that the order dated 4th June, 1981 whereby his service were terminated was stayed by this Court on 23rd June, 1981 and thereafter the operation of the interim order dated 23rd June, 1981 was extended up to 31st July, 1981 and ultimately it was ordered that the operation of the order dated 4th June, 1981 shall remain stayed until further orders. Since the opposite party had come to know of the stay order on 17th July, 1981 when the Chief Standing Counsel appeared before the court and made a request for time for filing counter-affidavit, the opposite party should have obeyed the order of 23rd June, 1981 passed by this court.

Further, it was submitted that at any rate the opposite-party had, come to know of the said stay order on 7th July, 1981 when the letter of the Superintendent of Works was delivered to him. Since the applicant was not reinstated and was not paid salary, it was urged that the opposite-party has deliberately disobeyed the order of this court dated 23rd, June, 1981. I find no force in this contention.

It may be that the opposite-party may have come to know of the order dated 23rd June, 1981 on 7th July, 1981 or at all events on 17th July, 1981. The question is whether he has disobeyed that order in any manner whatsoever. By the order dated 23rd June, 1981 this court had merely stayed the operation of the order dated 4th June, 1981 whereby the services of the applicant were terminated. There was no direction by this court to the opposite-party that he should reinstate or re-appoint the applicant Shanker Bux Singh nor was there any direction to the effect that Shanker Bux Singh should be paid his salary regularly and it would be open to the opposite-party to take work from him or not to take any work from him. The order dated 4th June, 1981 was served on the applicant a few days before the writ petition was filed. So, on the date when the writ petition was filed, the applicant's services stood terminated. He challenged that order of termination by filing a petition under Article 226 of the Constitution. That petition is still pending. I deem it expedient and proper not to make any comments on the merits of that petition, I have, however, to take notice of the fact that the termination order dated 4th June, 1981 had. already been served on the applicant before he had filed the writ petition on 19th June, 1981 and on 11th June a cheque for Rs. 640.75 towards one month's salary was delivered to the applicant. No further action was taken by the opposite party for implementing the termination order dated 4th June, 1981. On the other hand, the opposite-party moved an application on 17th September, 1981 for the vacation of the stay order and also seeking some clarification. When no order was passed on that application, he moved another application on 9th November, 1981. The present application for contempt was filed by Shanker Bux Singh on 19th November, 1981. So the conduct of the opposite-party could no be said to be in any manner contumacious. He had been acting bona fide throughout and when he found that no order could be passed on his two applications aforesaid, he moved another application on 11th February, 1982. Ultimately on 5th April, 1982 the stay order itself was vacated. These facts clearly go to indicate that the opposite-party has not disobeyed any order of this court. I am, therefore, unable to accept the contention of the applicant that opposite party has committed contempt of court. It may be noticed, here that in the case of Duli Singh v. State of U.P. 1977 All LJ 268: 1977 Cri LJ NOC 171 a similar situation had arisen. In that case also an interim order was passed to the following effect:

The operation of the impugned order dated 6-3-1975 shall remain stayed meanwhile.

Duli Singh said that since he was not re-instated after this interim order, the opposite parties had committed contempt of court. Considering the contention the Division Bench observed (at p. 270):

We think for recording a finding of guilt against the appellant in contempt proceedings a clear case must be made out that an order passed by the court in its terms was defied, disobeyed and disregarded by the person on whom that order was served and for whom that order was meant. In the instant case there appears to be great tenability in the argument that there being no positive order for reinstating the teacher and for paying him his salary, if the appellant as Manager thought that in the circumstances the suspension order revived, it cannot be said that the Manager would, be guilty of contempt of court.

It was further observed: --

The Manager as employer could not be compelled by this Court to take work from the teacher. In this state of law by not allowing the teacher to take charge of his teaching duties in the College the appellant as Manger had not defied any order or disregarded any order of this court. We, therefore, hold that the appellant was not guilty of contempt of court.

The same was expressed by the Calcutta High Court in Butalia H. S. v. Subhash Kumar Saksena 1974 (1) Serv LR 23 : 1974 Cri LJ 828. The present opposite party was never directed, to reinstate the applicant. I cannot therefore be accepted that he had disobeyed the order by not re-instating the applicant.

5. The applicant having failed to make out a case against the opposite-party under the provisions of the Contempt of Courts Act, his application is liable to be rejected.

6. In the circumstances the application moved by Shanker Bux Singh under the provisions of the Contempt of Courts Act against the opposite-party is rejected and the notice issued to the opposite-party is discharged.


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