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State of Gujarat Vs. Secretary, Labour Social Welfare and Tribunal Development Deptt. Sachivalaya and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1982CriLJ2255; (1982)1GLR61
AppellantState of Gujarat
RespondentSecretary, Labour Social Welfare and Tribunal Development Deptt. Sachivalaya and anr.
Cases ReferredShah v. State of Gujarat
Excerpt:
.....and legal duty to ensure that the law declared by this court, which was binding on the state government and its functionaries, was not ignored while initiating the disciplinary proceeding against the petitioner and in deciding on the questions involved in the said proceeding. 9. the legal position regarding the binding nature of judgments delivered by high courts was clearly explained as far back as 1962 by the supreme court. all the subordinate courts can equally do so, for there is no specific provision, just like in the case of supreme court, making the law declared by the high court binding on subordinate courts. indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more..........respondents in this miscellaneous criminal application were guilty for their acts or omissions of civil contempt as defined in section 2(b) of the contempt of courts act, 1971 inasmuch as there was a prima facie case that there was a wilful disobedience of the judgment, direction and writ of this court in special civil application no. 806 of 1975, there was also a prima facie case according to the division bench that the respondents were guilty of criminal contempt under section 2(c) of the contempt of courts act inasmuch as their conduct, acts or omissions throughout the proceedings were such as lowered or tended to lower the authority of this court or interfered or tended to interfere with the administration of justice. apart from the contempt of court under the contempt of courts.....
Judgment:

B.J. Divan, C.J.

1. This matter has been heard by us because the Division Bench consisting of P. D. Desai and S.B. Majmudar, JJ. by their order dt. Oct. 18, 1979 came to the conclusion that, prima facie, respondents in this miscellaneous criminal application were guilty for their acts or omissions of civil contempt as defined in Section 2(b) of the Contempt of Courts Act, 1971 inasmuch as there was a prima facie case that there was a wilful disobedience of the judgment, direction and writ of this Court in Special Civil Application No. 806 of 1975, There was also a prima facie case according to the Division Bench that the respondents were guilty of criminal contempt under Section 2(c) of the Contempt of Courts Act inasmuch as their conduct, acts or omissions throughout the proceedings were such as lowered or tended to lower the authority of this Court or interfered or tended to interfere with the administration of justice. Apart from the contempt of Court under the Contempt of Courts Act, the court also indicated that the question as to whether the respondents were liable to be dealt with in pursuance of the power of the Court flowing out of the provisions of Article 215 of the Constitution of India should be considered.

2. The facts leading to this application and the proceedings under the Contempt of Courts Act arise under the following circumstances. In Special Civil Application No. 2215 of 1979 the petitioner, who was at all material times working as Probation Officer under the provisions of the Probation of Offenders Act, 1958, was served with a charge-sheet dt. Dec. 24, 1976 with regard to certain misconduct alleged against him so far as discharge of his duty was concerned. This charge-sheet was issued by the second respondent herein, that is. Director of Social Defence, State of Gujarat. A departmental inquiry followed and by his report dt. June 28 1977 the' Inquiry Officer found the petitioner guilty of charges levelled against him. After serving upon the petitioner a show cause notice regarding the penalty proposed to be imposed, being show cause notice dt. June 29, 1977, the second respondent by her order dt. 'Aug., 31, 1977 removed the petitioner from service. The petitioner challenged that order of removal from service in Special Civil Application No. 2215 of 1979. The attention of the 2nd respondent and of the State Government had been drawn to the legal position arising from an earlier decision of this High Court regarding the position of a Probation Officer appointed under the Probation of Offenders Act, 1958.

3. Yet the order of removal from service was passed though the petitioner in Special Civil Application No. 2215 of 1979 had contended all along that he was a Gazetted Class II Officer, that no penalty could have been imposed upon him by the second respondent and that the petitioner who was a Class II Gazetted Officer was entitled to a certain treatment in respect of imposition of penalty in view of the provisions of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, and that the penalty could have been imposed only by the State Government and by no one else.

4. It is necessary at this stage to mention that in Special Civil Application No. 806 of 1975 decided by D. A. Desai, J. (as he then was of this High Court) on Aug. 7, 1975, it was held that the State of Gujarat and the Director of Social Defence must classify Probation Officers and the Chief Probation Officer as Gazetted Officers in Class II Service of the State of Gujarat. On an interpretation of Rule 7 of the Gujarat Probation of Offenders Rules, 1973 and other relevant statutory provisions, D. A. Desai, J. held that the petitioners of that petition, namely, Probation Officers and. the Chief Probation Officer, were entitled to be notified as Gazetted Officers, holding Class II posts. A writ of mandamus directing the State of Gujarat and the Director of Social Defence to classify the petitioners of that petition as Gazetted Officers of Class II Service from the date- on which the Gujarat Probation of Offenders Rules came into force, was issued against the respondents and the respondents were directed to give the benefits to the petitioners consequent, upon such classification.

5. Thus there was a direct and precise declaration of law by this High Court on the question of classification of the posts of Probation Officers functioning under the provisions of Probation of Offenders Act, 1958. It may be mentioned at this stage that the Probation of Offenders Act, 1958 which was enacted by Government of India as far back as 1958 was made applicable to the State of Gujarat on Sept. 4, 1973 in its entirety. The Probation of Offenders Act, by Sub-section (3) of Section 1 provided that it shall come into force on such date as may be notified in the Official Gazette and different dates may be appointed for different parts of the State. The Gujarat Probation of Offenders Rules, 1973 were made by the State Government in exercise of the power conferred upon it by Section 17 of the Probation of Offenders Act, 1958 and were made on 17th Jan. 1973.

6. So far as the petitioner in Special Civil Application No. 2215 of 1979 was concerned, he was first served with a charge-sheet on Aug. 5, 1975 and on Mar. 9, 1976 he was found guilty and penalty of stoppage of promotion for ten years was imposed upon him. He appealed to the state Government and by the order dated July 31, 1976 the State Government allowed the appeal and set aside the order of penalty on the ground that rules of natural justice had been violated by the Director of Social Defence. Thereafter a fresh inquiry was started on Dec. 24, 1976 and a charge-sheet was served upon the said petitioner and by his order dt. June 28, 1977 the Inquiry Officer submitted his report holding the said petitioner to be guilty of the charges levelled against him. On June 29, 1977, show cause notice regarding the penalty proposed to be imposed on him was issued and after hearing his explanation, by the order dt, Aug. 31, 1977 the Director of Social Defence imposed the penalty of removal from service. Against this decision of the Director of Social Defence the petitioner filed a civil suit at Bhavnagar and thereafter in Aug. 1979 Special Civil Application No. 2215 of 1979 was filed On Sept. 25, 1979 P. D. Desai, J. sitting single considered the whole position and he gave time to the respondents in Special Civil Application No. 2215 of 1979 to make amends and the matter was adjourned to Oct. 12, 1979. Thereafter, on Oct. 10. 1979 amends were made by an order passed by the State Government cancelling the order dt. August 31, 1977 removing Acharya, the petitioner, from service On cancellation of that order, Acharya was deemed to have been continued in service even from the date of his removal from service and he was posted as Probation Officer under the provisions of the Probation of Offenders Act at Jamnagar under the Chief Probation Officer, Jamnagar, and it was also mentioned in the order dt. Oct. 10, 1979 'This order shall not operate as a bar to taking fresh action or proceedings against Shri B.R. Acharya as per rules....' The main reason why time to make amends was granted by P. D. Desai, J. on Sept. 29. 1979 was that quite contrary to the legal position laid down by this Court in Special Civil Application No. 806 of 1975 by D. A. Desai, J. in his judgment and order of August 7. 1975 and in spite of it being pointed out to the Director of Social Defence and the State Government that in view of the fact that Acharya, the petitioner, was a Gazetted Class II Officer, the entire inquiry proceedings against him were bad and vitiated, his contentions were totally brushed aside and the order of removal from service came to be passed,

7. After the amends were made on Oct. 12, 1979, as pointed out earlier the Division Bench consisting of P. D. Desai & S.B. Majmudar, JJ. came to certain prima facie findings that the following acts or omissions on the part of the State Govt. and the Director of Social Defence had been established, namely, (1) the second respondent, that is, the Director of Social Defence, who is a highly placed functionary of the State Govt. and as such an instrumentality or agency through whom the State Government exercised control including disciplinary control over its employees in the concerned department, acted in total disregard of the decision of this Court in Special Civil Application No. 806 of 1975 decided on Aug. 7, 1976 (1975), which was directly in point and incapable of being distinguished, although she must be presumed to have been aware of the said decision since she or her predecessor-in-office was a party to the proceedings in which the said decision was rendered and although her attention was repeatedly drawn to the same by the petitioner. (2) The State Government and the Secretary to the Government in the concerned Department, even though they were apprised of the true legal position flowing out of the decision of this Court in Special Civil Application No. 806 of 1975, which had become final, no appeal having been preferred therefrom at different stages of the disciplinary proceedings initiated against the petitioner, failed to intervene and acquiesced in and condoned the aforesaid serious lapse on the part of the second respondent and abdicated their constitutional and legal duty to ensure that the law declared by this Court, which was binding on the State Government and its functionaries, was not ignored while initiating the disciplinary proceeding against the petitioner and in deciding on the questions involved in the said proceeding. (3) Even after Special Civil Application No. 2215 of 1979 was instituted and in unmistakable terms the aforesaid state of affairs was brought into sharp focus in paragraph after paragraph of the petition, an impression was given to the Court even at the stage of final hearing of the said petition that the State Government and the second respondent were still not inclined or willing to review their stand and to set right the gross violation of the decision of this Court in Special Civil Application No. 806 of 1975. (4) Although in the judgment delivered in Special Civil Application No. 2215 of 1979 on Sept. 25, 1979, all the various ramifications of the respondents' action were highlighted and an opportunity, unusual in itself in the circumstances of the case, was given to the respondents to make amends and remedy the situation, there was. no apparent indication of any self-motivated reparation by suo motu acknowledgment of the indignity offered to this Court. The second respondent or the officer holding charge of the post of the second respondent acted solely in view of the finding recorded in the judgment delivered on Sept. 25, 1979 to the effect that the proceedings against the petitioner and at least the order imposing penalty was without jurisdiction. Even while doing so, however, there was no hint of remorse, no sign of penitence and no evidence of contriteness. (5) The consistent conduct of the respondents all throughout the vicissitudes of the proceedings, prima facie, appear to be stemming from wilful disobedience to a judgment of this Court and to fall within the mischief both of civil and criminal contempt.

8. At the stage when the show cause notice was issued, the learned Advocate General and the High Court Advocates' Association were allowed to intervene so that the proper legal position could be fairly examined. We have heard the different Intervenors and also learned Advocate Mr. J. C. Patel for the Gujarat High Court Advocates' Association.

9. The legal position regarding the binding nature of judgments delivered by High Courts was clearly explained as far back as 1962 by the Supreme Court. In East India Commercial Co. Ltd. v. Collector of Customs, Calcutta : 1983(13)ELT1342(SC) , Subba Rao J. (as he then was) speaking for himself and Mudholkar J., has explained, though A. K. Sarkar J. who was the Third Member of the Bench did not fully agree with this aspect of the legal position, the legal position in para 29 of the report as follows:

This raises the question whether an administrative tribunal can ignore the law declared by the highest Court in the State and initiate proceedings in direct violation of the law so declared. Under Article 215, every High Court shall be a Court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Under Article 226, it has a plenary power to issue orders or writs for the-enforcement of the fundamental rights and for any other purpose to any person or authority including in appropriate cases any Govt. within its territorial jurisdiction. Under Article 227 it has jurisdiction over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that court and start proceedings in direct violation of it. If a tribunal can do so. all the subordinate courts can equally do so, for there is no specific provision, just like in the case of Supreme Court, making the law declared by the High Court binding on subordinate courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working; otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer. We, therefore, hold that the law declared by the highest court in the State is binding on authorities or tribunals under its superintendence, and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so, the notice issued by the authority signifying the launching of proceedings, contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction.

(Emphasis supplied by us).

The position was reiterated in Makhan Lal v. State of Jammu and Kashmir : [1971]3SCR832 . It was in the context of the law declared by the Supreme Court that the decision laid down to that effect so far as Article 141 of the Constitution was concerned, but what has been observed in para 5 at P. 2209 by Grover J. speaking for the Supreme Court has equal application so far as pronouncements by the High Courts are concerned. Grover J. observed at page 2209:

The judgment which was delivered did not merely declare the promotions granted to the respondents in the writ petition filed at the previous stage as unconstitutional but also laid down in clear and unequivocal terms that the distribution of appointments, posts or promotions made in the implementation of the communal policy was contrary to the constitutional guarantee of Article 16. The law so declared by this Court was binding on the respondent State and its officers and they were, bound to follow it whether a majority of the present respondents were parties or not in the previous petition.

(Emphasis supplied by us).

It cannot therefore be contended by anyone, that since Acharya, the petitioner in Special Civil Application No. 2215 of 1979, was not a party to Special Civil Application No. 806 of 1975, that the law laid down by D. A. Desai S. in his judgment in that case on Aug. 7, 1975 was not applicable to the case of Acharya. Whether the law is declared by the Supreme Court or whether the law is declared by the High Court, the legal position as regards authorities and tribunals subordinate to the Supreme Court and High Courts respectively is the same as pointed out by Subba Rao J. in East India Commercial Co.'s case : 1983(13)ELT1342(SC) (supra).

10. In Baradakanta Mishra v Bhimsen Dixit : 1973CriLJ19 , the legal position regarding binding nature of the High Court's decision was once again reiterated by the Supreme Court and after quoting the above passage which we have extracted from the judgment of Subba Rao J. in East India Commercial Co.'s case : 1983(13)ELT1342(SC) (supra), in paras 15 and 16 of the judgment, Dwivedi J. speaking for the Supreme Court observed at page 2469 (of AIR) : (at pp. 22, 23 of Cri LJ):

The conduct of the appellant in not following the previous decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of contempt. The analogy of the inferior court's disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of contempt Just as the disobedience to a specific; order of the Court undermines the authority and dignity of the court in a particular case, similarly any deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court generally, but is also likely to subvert the Rule of law and engender harassing uncertainty and confusion in the administration of law.

In Hasmukhlal C Shah v. State of Gujarat (1978) 19 Guj LR 378, a Division Bench of this High Court consisting of J. B. Mehta and P. D, Desai, JJ., after examining several decisions on the point, observed:.In a Government which is ruled by laws, there must be complete awareness to carry out faithfully and honestly lawful orders passed by a Court of law after impartial adjudication. Then only will private individuals, organisations and institutions learn to respect the decisions of Court, In absence of such attitude on the part of all concerned, chaotic conditions might arise and the function assigned to the Courts of law under the Constitution might be rendered a futile exercise.

11. From these four decisions, the following propositions emerge.

(1) It is immaterial that in a previous litigation the particular petitioner before the Court was or was not a party, but it law on a particular point has been laid down by the High Court, it must be followed by all authorities and tribunals in the State;

(2) The law laid down by the High Court must be followed by all authorities and subordinate tribunals when it has been declared by the highest Court in the State and they cannot ignore it either in initiating proceedings or deciding on the rights involved in such a proceeding;

(3) If in spite of the earlier exposition of law by the High Court having been pointed out and attention being pointedly drawn to that legal position, in utter disregard of that position, proceedings are initiated, it must be held to be a wilful disregard of the law laid down by the High Court and would amount to civil contempt as defined in Section 2(b) of the Contempt of Courts Act, 1971.

12. In the instant case, apart from wilful disobedience to the judgment declared by D. A. Desai, J, in Special Civil Application No. 806 of 1975, there is the question of criminal contempt as well because the attitude taken up by the State Government and by the Director of Social Defence lowered or tended to lower the authority of this High Court inasmuch as the law clearly laid down by the High Court was disregarded at various levels and even while making the amends by the order dated Oct. 10, 1979 the Government has not shown the slightest contriteness or remorse. A more serious matter of this kind has yet to be seen. In our opinion, a grave view of the matter is required to be taken and responsible officers of the State Government, namely, Secretary to the Department concerned, the Education and Labour Department, and the Director of Social Defence, are both guilty of civil and criminal contempt. Under Section 12(1) the penalty for contempt of Court which has been laid down is simple imprisonment for a term which may extend to six months, or fine which may extend to two thousand rupees or both. Under Sub-section (3) of Section 12 it has been laid down:

Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.

The proviso to Sub-section (1) of Section 12 provides:

Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.

In the instant case, both the Secretary of the Education and Labour Department, P.V. Bhatt, in his affidavit dt. Nov. 23, 1979, and the Director of Social Defence in her affidavit dt. Nov. 23, 1979, have expressed their apologies but, in our view, contempt committed by them is so gross that the apology cannot be accepted. The only mitigating circumstance in this case is that there was some confusion but there was no scope for that confusion if the legal position had been clearly, understood in the light of the decision of D. A. Desai, J. in Special Civil Application No. 806 of 1975. Apology does not purge contempt and in this case, in our opinion, in view of the special features which have been pointed out above, even at the stage when amends were made, there was no expression of con-triteness or remorse.

13. Under Article 215 it has been provided that every High Court shall be a court of record and shall have all the power of such a court including the power to punish for contempt of itself, Under Section 22 of the Contempt of Courts Act, 1971, it has been provided that the provisions contained in the Act shall be in addition to, and not in derogation of, the provisions of any other law relating to contempt of courts. However, since we have found that there was both civil and criminal contempt as defined in the Contempt of Courts Act, 1971 it is not necessary for us to examine the question regarding the contempt of Court of this High Court, power in respect of which has been preserved by Article 215 of the Constitution. The power under the Contempt of Courts Act is in respect of punishing for the contempt of the High Court as well as of any Court subordinate thereto, because Section 11 points out that the High Court shall have jurisdiction to inquire into or try a contempt of itself or of any court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and whether the person alleged to be guilty of contempt is within or outside such limits, but under Article 215 power of punishing for contempt of the High Court itself is conferred upon the High Court. In the instant case, we have come to the conclusion that there is contempt of High Court but in view of the penalty which we are imposing under Section 12 of the Contempt of Courts Act, we do not think it necessary to consider the question of punishing the respondents under powers conferred by Article 215 of the Constitution.

14. Hence, in our opinion, ends of justice will be met by imposing the penalty of a fine of one hundred rupees on the second respondent and a fine of one hundred rupees on the first respond dent, namely, Secretary, Labour and Social Welfare and Tribal Development Department, Sachivalaya, Gandhinagar. Orders accordingly.


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