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Ashis Kumar Ghosh Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1985CriLJ87
AppellantAshis Kumar Ghosh
RespondentUnion of India (Uoi) and ors.
Excerpt:
- orderamitabha dutta, j.1.this contempt proceeding against the opposite party no. 1, chairman, board of trustees for calcutta port trust and the opposite party no. 2 the chief hydraulic engineer, calcutta port trust has been initiated on the application of the petitioner against whom an order dated 5-10-1983 dismissing him from the post of electronic instrument engineer was passed by the opposite party no. 1, after considering the report of the inquiry into certain charges against the petitioner in a departmental proceeding. the said order of dismissal was served on him on 8-10-1983 and the learned judge, janah j. admitting the same, issued rule and an interim order restraining the respondents including the present opposite parties nos. 1 and 2, their agents, servants and subordinates from.....
Judgment:
ORDER

Amitabha Dutta, J.

1.This contempt proceeding against the opposite party No. 1, Chairman, Board of Trustees for Calcutta Port Trust and the opposite party No. 2 the Chief Hydraulic Engineer, Calcutta Port Trust has been initiated on the application of the petitioner against whom an order dated 5-10-1983 dismissing him from the post of Electronic Instrument Engineer was passed by the opposite party No. 1, after considering the report of the inquiry into certain charges against the petitioner in a departmental proceeding. The said order of dismissal was served on him on 8-10-1983 and the learned Judge, Janah J. admitting the same, issued Rule and an interim order restraining the respondents including the present opposite parties Nos. 1 and 2, their agents, servants and subordinates from giving any effect or further effect to the impugned order of dismissal and the inquiry report dt. 28-8-82 in any way affecting the service of the petitioner and also from passing any final order on the basis of the departmental inquiry made against the petitioner pending the disposal of the Rule.

2. It is not disputed that the interim order passed by the Court was communicated to the opposite parties Nos. 1 and 2 on 19-10-1983, by the petitioner's advocate's letter of the same date. The petitioner's case is that he has been regularly attending the office of the Electronic Instrument Engineer under opposite party No. 2 and discharging his duties after 8-10-83. But he received a letter dt. 8-10-83 from the opposite party No. 2 on 22-10-83 whereby the opposite party No. 2 directed him to hand over all Trustees' stores and materials under his charge to Sri S.N. Datta, Senior Scientific Officer with keys and identity card immediately. On behalf of the petitioner a reply was sent to the opposite party No. 2 on 25-10-83 reminding him of the interim order dt. 19-10-83 of this Court. The opposite party No. 2 received the said letter dt. 28-10-83 but he did not withdraw or recall his letter dt. 8-10-83. The petitioner has not been paid any salary for the period after 8-10-83. The petitioner understands from reliable source that the opposite party No. 1 in concert with opposite party No. 2 directed not to prepare salary bill for the petitioner for the month of Oct. and Nov. 1983 in spite of their knowledge of the order dt. 19-10-83 passed by the Hon'ble Mr. Justice A. K. Janah. It is alleged that they have intentionally and wrongfully violated the interim order of this Court by not paying the salary and allowances of the petitioner or by not preparing the salary bills for the petitioner and thus giving effect or further effect to the impugned order of dismissal.

3. Both the opposite parties have separately filed counter-affidavit opposing the application for contempt. Their case is that the order of dismissal dt. 5-10-83 having been served on the petitioner on 8- 10-83 the petitioner ceased to be in service of the Calcutta Port Trust after 8-10-83. As the petitioner did not hand over the Trustees' stores/materials, keys and indentity card on 8-10-83 he was directed by a letter of the same date to do so. The alleged receipt of the said letter by the petitioner on 22-10-83 has been denied. Moreover, the said letter was issued 11 days prior to the interim order, It is averred that the interim order must have been obtained by keeping back from the learned Judge, Janah J. that the order of dismissal dt. 5-10-83 had already been given effect to on 8-10-83 at least 11 days prior to the presentation of the writ petition.

4. Upon hearing Mr. Banerji learned Advocate for the petitioner and Mr. Dutt the learned advocate for the contemnor/- opposite parties and considering the facts and circumstances of the case, I am not satisfied that the opposite parties have committed wilful disobedience to the interim order of the learned Judge, Janah passed on 19-10-83, mainly because the order of dismissal of the petitioner which had been served on him on 8-10-83 had already taken effect and after the direction issued to the petitioner by letter dt. 8-10-83 of the opposite party No. 2 to hand over the stores and materials under his charge and the keys and identity card to the designated officer, nothing more remained to be done to give full effect to the order of dismissal. The fact that the interim order includes prohibition from passing any final order on the basis of departmental inquiry made against the petitioner pending the disposal of the Rule, shows that an incorrect impression was somehow created in the mind of the learned Judge that no such final order had already been made. That apart, as the order of dismissal of the petitioner has not been set aside by a competent authority, payment of salary to the petitioner for his purported service after the date of dismissal could not and cannot be made under the rules and so non-payment of salary to the petitioner does not constitute a violation of the interim order. The interim order of this Court does not direct payment of salary to the petitioner. If there is something to mislead on a plain reading of the court's order, disobedience of such an order does not in my view, constitute contempt. A contempt proceeding cannot be used by a party to enforce a disputed claim. The determining factor is not the harm done to the individual but the harm done to the future administration of justice. Applying this test, 1 find that the opposite parties have not committed any civil contempt by the alleged part played by them in nonpayment of the salary and allowances to the petitioner for the period after 8-10-83.

5. It may be mentioned also that the interim order was obtained without prior notice to the opposite parties, Rule 25D of the Rules of this Court relating to applications under Article 226 of the Constitution requires that the petitioner must serve as soon as possible after the interim order a copy of the writ application on the respondents including the opposite parties in the same manner as specified in Rule 25A. But the petitioner did not comply with the mandatory requirement of Rule 25D depriving the respondents of any opportunity to move against the interim order. It has been submitted by Mr. Dutt on behalf of the opposite parties that no copy of the writ application has yet been served on them. The original record of Civil Rule No. 10063(W) of 1983 also does not show that such service has been effected.

6. The allegations made in para 27 of the application for contempt that the petitioner understands from reliable source that the opposite party No. 1 in concert with opposite party No. 2 directed not to prepare salary bill for the petitioner for the month of Oct. and Nov. 1983 in spite of their knowledge of the interim order dt. 19-10-83 passed by the Hon'ble Mr. Justice A. K. Janah has been verified in the affidavit as true to knowledge which is patently incorrect and that too is a ground for rejecting the application for contempt.

7. For reasons aforesaid the application for contempt must fail and is dismissed. The contempt Rule is discharged.


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