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Gian Chand Bali Vs. L.P. Singh - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberCriminal Original Appeal No. 1 of 1967
Reported in4(1968)DLT135
ActsContempt of Courts Act - Sections 3 and 4; Code of Civil Procedure (CPC), 1908 - Sections 82
AppellantGian Chand Bali
RespondentL.P. Singh
Advocates: M.R. Sharma and; Sushil Malhtora, Advs
.....and expiry of the statutory period, the secre- tary, government of india/chief secretary, himachal pradesh government, failed to appear in the court and did nto execute the decree dated 28th october 1963. the petitioner/decree-holder made an application in the lower court on 18 december 1964 for contempt of court proceedings which was disposed of by that court on 27th march 1968 with the obser- vation 'that it was thus incumbent on the plaintiff/decree holder to bring to the ntoice of the court some specific instances in which he has nto been treated as a permanent government servant since 1st march 1930 as orde- red by the court and that further proceedings against this act under the contempt of courts act can only be started after establishing by affidavit or toherwise the allegation..........of himachal pradesh, simla, (4) shri s. c bhatnagar, the then secretary (excise) to himachal pradesh government, simla, (5) shri k. r. chandel, i.a.s. secretary (appointment) to government. himichal pradesh, simla is based on the following averments. gian chand ball, assistant exicise and taxation comissioner, himachal pradesh, petitioner joined police department in permanent capacity in the north west frontier province of pre-partition india on 1st march 1930. he was transferred to delhi ^police service (punjab,india) an 13th august 194/ and joined duty as deputy supelintendent of police at delhi in substantive/permanent capacity. this was ntoified in the gazette of india on 27th december 1947. on l9th august 195 , he was deputed to the himachal pradesh by the government of india.....

D. Dua, C.J.

(1) The Judgment of the Court was delivered by:- -This application under section 3 and 4 &t; the Contempt of Courts Act No 32 of 19)2 against (1) Shri 1. P. Singh. 1. C. S., Secretary, Ministry of Home Affairs, Government of India, New Delhi, (2) Shri A. D Pande, 1. A. S Joint Secretary, Ministary of Home Affairs, Government of India, New Delhi, (3) Shri T. S. Negi. 1. A. S, the then Chief Secretary, Government of Himachal Pradesh, Simla, (4) Shri S. C Bhatnagar, the then Secretary (Excise) to Himachal Pradesh Government, Simla, (5) Shri K. R. Chandel, I.A.S. Secretary (Appointment) to Government. Himichal Pradesh, Simla is based on the following averments. Gian Chand Ball, Assistant Exicise and Taxation Comissioner, Himachal Pradesh, Petitioner Joined Police Department in permanent capacity in the North west Frontier Province of Pre-Partition India on 1st March 1930. He was transferred to Delhi ^Police Service (PunJab,India) an 13th August 194/ and Joined duty as Deputy Supelintendent of Police at Delhi in substantive/permanent capacity. This was ntoified in the Gazette of India on 27th December 1947. On l9th August 195 , he was deputed to the Himachal Pradesh by the Government of India and was treated 'on tour' for his. Journey '-to Simla for the purpose of taking up the post of the Exicise and Taxalan Officer, Himachal Pradesh, vide letter No. 14/18/50-Police-l, dated .'26th August 1952 from the Government of India to the Government of Himachal Pradesh. He handed over charge of the office of Deputy Superintendent of Police on 21st August 12 and Jointed duty as 'Officating ' Exicise & Taxation Officer. Himachal Pradesh, on 29th August 1952. This was ntoified on 17th September 19 92. On 20th September ^ 1954, the petitioner was treated by the Himachal Pradesh Government as a 'new entrant' in Government service with effect from 29th August 1952. This is pleaded to be an exparte order. The petitioner thereupon instituted a declaratory suit challenging the said order, The Subordinate Judge, Kandaghat at Simla, on 28th October 1963, decreed the suit for declaration, declaring the petitioner to be 'a permanent Government sarvant with effect from 1st March 1930.' Pursuant to this declaration, according to the petitioner, the Union of India was to make a formal order to the effect that in pursuance of the civil Court's decree, the order of the defendant made on 30th September 1954, treating the plaintiff petitioner as a new entrant in Government sarvice was illegal and inoper- ative and that the plaintiff/petitioner was a permanent Government acivart from 1st March 1930 for all intents and purposes. The petitioner moved the Subordinate Judge, Kandighat, who issued a ntoice under section 82, Civil Procedure Code, to the Secretary, Government: of India, Ministry of Home Affairs, to execute the Court s decree, but in spite of service of ntoice and expiry of the statutory period, the Secre- tary, Government of India/Chief Secretary, Himachal Pradesh Government, failed to appear in the Court and did nto execute the decree dated 28th October 1963. The petitioner/decree-holder made an application in the lower Court on 18 December 1964 for contempt of Court proceedings which was disposed of by that Court on 27th March 1968 with the obser- vation 'that it was thus incumbent on the plaintiff/decree holder to bring to the ntoice of the Court some specific instances in which he has nto been treated as a permanent Government servant since 1st March 1930 as orde- red by the Court and that further proceedings against this act under the Contempt of Courts Act can only be started after establishing by affidavit or toherwise the allegation so made. in pursuance fo this order, the petitioner again requested the fudgment-debtor/Chief Secretary, Himachal Pradesh on 7th April 1965, to issue a formal order correcting the impugned order dated 20-9-1954 which was set aside by the Court t on 28th October 1963. The Joint Secretary (Appointment),Himachal Pradesh Government again refused to comply with the order of the Court on 17th May 1965. The petitioner again moved the Subordinate Judge, Kandaghat, on 3rd June 1966 to issue show cause ntoice to the Judgment debtor and its officers as to why they should nto be committed to poison and their pronerty attached according to law. The Subordinate Judge issued a show auss ntoice on 8th June 196'5 to the Secretary, Govern- ment of India/Chief Secretary, Himachal Pradesh, to appear on 7th July .1965 and explain the position. The counsel on behalf of the respondents appeared and the case was adjourned to 4th August 1965. Instead of executing the decree and complying with the Court's order, the respondents approached the High Court for stay of proceedings, which prayer was declined. On 20th August 1965, the respondents submitted a written statement pleading that the decree was nto executable and it was added that there was no order or injunction which required to be complied with. On 231 d August 1965, the respondents, out of vindictiveness, malice and feeling of retaliation, on account of the petitioner's persistence in proceedings with his paryar for contempt of Court against them, served the petitioner three months' ntoice of retirement from service with effect from 24th November 1966) on the ground that the petitioner had attained the age of 55 years on 28th February 1965, ignoring the fact that the age of superannuation had been raised to 58 years. The Himachal Pradesh Government again in its order dated 3rd/4th August, 1965 willfully treated the petitioner as a new entrant in Government service in clear violation of the Court's decree. This order is described in the petition to be illegal and without Jurisdiction. The ntoice of retirement was served on the petitioner on 23rd August 1963 anil was thereforee, to expire on 23rd November 1965 on 22nd November the petitioner was granted three days' earned leave on medical grounds, later extended by one month's ordinary leave. While he was on leave, his name-plate was removed from the office premises and his residential telephone connection disconnected . The petitioner's prtoest went unheeded and he was nto disbursed his salary from November, 1905 onwards. The unnecessary delay on the part of the officers of the Government of India in executing the decree dated 28th October 1963 has, according to the petition, deprived the petitioner decree-holder of the benefits which he would have gto, had the decree been carried out by the Judgment-debtor. willful disobedience of the order of the Court of the Subordinate Judge is alleged to constitute a willful contempt of that Court .On 30th April 1966, the Subordinate Judge after hearing lengthy arguments, came to the conclusion that the order dated 20th September 1954, having been declared a nullity and, there fore, inoperative, there was no occasion for its formal revocation by the defendant-judgment-debtor, nor was there any necessity for pasting a formal .order that the petitioner was a permanent Government servant. Indeed, no act or omission on the part of the respondents was brought to the ntoice of the Subordinate Judge even at the stag of arguments which deprived the petitioner of the benefits claimable by him as a result of the trial Court's decree and which could appropriately con-titute contempt of Court. Memorandum dated 17th May 1965 was also held nto to amount to contempt. The application was accordingly dismissed as devoid of merit This order, according to the petitioner, is wrong and he desires this Court to take action under the Contempt of Courts Act against the five respondents mentioned above substantially on the facts just narrated, this petition was placed for preliminary hearing before Gurdev Singh, J. of the Punjab High Court on 8th August 1966 and the learned Judge was pleased to issue a ntoice only to respondents Nos. 4 and 5 (Shri S. C. Bhatnagar and Shri K. R Chandel), apparently leaving the matter against the toher respondents open.

(2) Shri S. C. Bhatnagar he s in his affidavit in reply pleaded that in the letter of offer of appointment to the petitioner the question with regard to the fixation of his pay as well as the drawal of transfer T. A. for his purney to Simla, if admissible, was specifically reserved to besett- led by the Government of India and that in the letter of appointment, there was no mention of Shri Bali being on deputation. In regard to the decree of the Court below, it was mentioned that the Union of India bad preferred an appeal against the said decree which was pending in the High Court and it was added that the plaintiff's suit had been decreed declaring that the order of the defendant mad' on 20th September l954 treating the plaintiff as a 'new entrant' in Government service was illegal , null and void and inoperative and that the plaintiff was a permanent Government servant from 1st March 1930. This, according to the affidavit was a decree for declaration, pure and simple, and no consequ- ential relief was granted in this decree The judgment debtor was nto required to issue any order in respect of Shri Bali's appointment, and indeed there was no order or injunction to the defendants to do anyth- ing further whatsoever. The declaration of the Court tendered the order of 20th September, 1954, automatically void and no formal order of the Government was required for cancelin.; the order already declared null and void. If the petitioner felt that he was entitled to any further consequential relief, it was open to him to initiate appropriate proceedings to secure the same. An appeal had bae i preferred by the respondents and on disposal of that apoeal, if Shri Bali is held entitled to any further relief, the same would be given. Any intention the part of the respondents to defy the order of the Court or to commit any con- temt was emphatically denied Malice and vindretiveness or retaliation on the part .of the respondents was also denied. Ntoice to retire Shri Bali on attaming the age of 55 years by giving him three months' ntoice was sought to be justified on the basc is of F. R 56 read with para 6 of the Ministry of Home Affairs' O.M.No.33/l8/62-Ests(A)dated 30th November, l962, it being added that in the instant case, the appointing authority had clearly come to the conclusion that the retention of the pttitioner in Government service any further would nto be in the public interest as in his state of mind, and in view of his service record, he would nto serve any useful purpose as a Government servant and would nto be able to discharge his duties in a manner required of a Government office in his position. It was also pointed out that the petitioner had already challenged the ntoice of retirement by filling a writ petition in the Count Bench of the Punjab High Court at Delhi, with the result that this matter was sub-judice. The petitioner had been granted leave on medical grounds initially for three days which was later extended to one month's ordina'y leave pursuant to the instructions of the Government of India, Ministry of Finance, and this, according to the affidavit, was done under F. R. 6. Grant of leave according to the averment neither caused any harassment to the petitioner, nor did it amount to concempt of Court. The averment regarding benefits in the petitioners, application, has been described in the reply to be vague and lacking in particulars.

(3) The affidavit in reply by iespondent No. 5, Shri K. R. Chandel, is similar to the one submitted by respondent No. 4.

(4) It may here be pointed out that the appeal preferred by the Union of India was withdrawn and was accordingly dismissed as with- drawn and the cross-objections of Shri Bali were allowed. As a result, it was declared by this Court that the plaintiff Shri Bali was a permanent Deputy Superintendent of Police with effect from 13th August, 1947, for all intents and purposes.

(5) Facts stated above do nto show any violation or breach of the decree of this Court, with the-result that we must repel the petitioner s contention that the respondents have been gulty of contempt of Court by disobeying the orders of this Court made on appeal.

(6) In so far as the decree of the trial 'Court is concerned, again, no concrete and specific facts have been brought to our ntoice which would show that respondents Nos. 4 and 5 have committed contempt of Court by consciously and deliberately disobeying the decree of the learned Subordinate Judge, Kandaghat. All that the petitioner's learned counsel has been able to point out is that no foimal o'der has been made by the respondents cancelling the order dated 20th September, 1954, i Of course, our attention has been drawn to the letter dated 20th July 1967 from Shri A. D. Pande, Joint Sectretary to the Government of India Ministry of Home Affairs, New Delhi, to Shri M. C. Sharma, Chief beeretary to the Government of Himachal Pradesh, in which it has been pointed out that the question of admissibility of deputation allowance to the petitioner had been taken up with the Ministry of Finance and that it would take some time before the matter is settled and that the fixa- corporation of the petitioners pay with effect from 13th August, 1947 would have to be taken uo by the Himachal Pradesh Government with the Accountant General, Punjab. This letter, it is worth ntoing, was wri- tten after the decision of the High Court dismissing the Government's appeal and allowing the petitioner's cross-objections. Emphasis has been placed by Shri M. R. Sharma on clause (c) of this letter where in it is stated that the petitioner is nto a member of any cadre and, there- fore, the question of his seniority does nto arise. He has been described to be holding an isola ed post and woul i be deemed to be Deputy Super rintendent of Police with effect from 13th August 1917. This clause, according to the learned counsel, clearly shows that the decree of the High Court as also that of the lower Court are nto being honoured by the respondents. Without going into the question of the exact scope and meaning of the decree of the High Court, we do nto think that this clause by any means makes out a case of contempt of Court by reason of disobedience of the High Courts decree against respondents Nos. 4 and 5 who alone were given ntoice by Gurdev Singh, J.

(7) Contempt of the Court, it may be remembered, is a summary process and has to be used only from a sense of duty and under pressure of public interest. These summary powers if they aie to be' effective and are to uphold the dignity of the Court, must nto be used too readily and too frequently, without compelling reasons, at the instance of aggri- eved litigants who, more often than nto, are inspired by a desire to utilise the machinery o* these powers for enforcing their ciil rights. These powers have to be used only in serious cases where deliberate contempt is clearly established on the part of the contemner The great impoitance of upholding the dignity, power, prestige and authority of the Courts of law and justice in a democratic society founded on Rule of Law, and of implicit obedience to the orders of the Courts, can be mini- mised only at the risk of weakening the foundations of our constitutional set-up and correspondingly endangering our very democratic existence. This Court would accordingly be failing in its constitutional obligation to ignoie disobedience of its orders or of those of its subordinate Courts, from any quarter in this Republic, however high. But the usefulness of this power necessarily depends on the wisdom and restraint with which it is exercised. Merely because the alleged contemners in the present case on some occasion represented that the petitioner was a new entrant, possibily for the reason that the appeal presented by the Union of India was still awaiting disposal in the High Court, it cannto he said that they have committed punishable contempt of Court by disc beying the trial Court's decree. Contempt of Court, it is undeniable lies, broadly speaking, in dispising of the authority, justice or dignity of the Court and, the person whose conduct tands to bring the authority and administration of law into disregard or disrespect or interferes with or prejudices the parties or witnesses, or tends to obstruct the Court in the discharge of its duties, is normally understood to be guilty of contempt; and it is equally undeniable that this Court would be quick to take all lawful steps against the guilty for vindicating the Court's authority. However, ntohing urged on behalf of the petitioner in the instant case shows that the alleged contemners before us have done anything which would bring their conduct within the above definition. That is more significant, the trial Court also did nto consider that its decree had been disobeyed by the respondents. The opinion of the lower Court, the disobedience of whose order is the sole basis of these proceedings, is, in out view, entitled to considerable weight, and indeed that should, nor- mally speaking, have been the end of the matter. However, after con- sidering the facts to which our attention has been drawn, we are also inclined to agree with the view taken by the dismiss- is and fails accordingly petition This out. made tempt con- puli-hahle no clearly there event, any In question. in Judge Subordinate the by petitioner of favor decree disobeying Court contempt committed have they that satisfied nto certainly are -we petitioner?s said be may something which on point a Towards attitude accommodating more adopted could respondents or whether to as opinion expressing Without below.

(8) Before concluding, we must observe that the learned counsel for the petitioner has addressed arguments, giving us an impression as if he is fighting a private litigation against the respondents. We consider it our duty to remove this somewhat common and alluring misappre- hension and state in the clearest possible terms that. in contempt pro- ceedings, the only function which a private litigant, is expected to per- form is to bring to the ntoice of the Court the relevant lacts and nto to persist like a contesting suitor in pressing the petition as if it is his right to secure punishment of the contemner. With the permission of the Court, he would certainly be entitled to assist the Court, but the assis- tance must be objective and nto subjective. Proceedings for contempt of Court must nto be treated as a substitute for execution proceedings enforcing the decrees and orders made in favor of the decree-holders. The present petitioner's approach betrays a misconception of the na- ture of the contempt proceedings and the status of the private litigants in these proceedings we shnuld have burdened the petitioner with costs, but we find that being a lay man, he was perhaps obsessed with an im- pression that the respondents weie somewhat unfavorably disposed towards him, and for this reason, were nto recording the orders, which the petitioner thought should rightfully have been recorded. We would in the circumstances direct that the parties should bear their own costs.

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