SUPREME COURT OF INDIA
Director of Education, Uttaranchal
Vs.
Ved Prakash Joshi
C.A.No.3713 of 2005
(Arijit Pasayat and S.H.Kapadia JJ.)
15.07.2005
Arijit Pasayat, J.
1. Leave granted
2. Order passed by learned single judge of the Allahabad High Court giving
certain directions while dealing with application filed under Sections 14 and
15 of the Contempt of the Courts Act, 1971 (in short the 'Act') read
with Article 215 of the Constitution of India, 1950 (in short the 'Constitution')
is challenged in this appeal. The foundation of such application was alleged
non-compliance of the directions given by the learned Single Judge of the High
Court in Writ Petition no. 129/84 by order dated 16th September, 1997. By the
impugned order learned Single Judge has given certain directions while
disposing of the Contempt Petition.
3. According to the learned counsel for the appellants such directions could
not have been given while dealing with application for contempt. Such exercise
of power is not authorized in law. During the hearing of the application by the
High Court the respondent no. 1 (applicant before the High Court) had contended
that in view of the judgment passed by the learned Single Judge in the Writ
Petition the applicant was entitled to arrears of salary etc. The appellant and
the functionaries of the State who were impleaded as respondents in the
contempt proceedings took the stand that there was no positive direction for
giving appears of salary and, therefore, non-payment would not constitute
wilful violation to attract action in terms of Section 12 of the Act.
4. The High Court was of the view that no positive directions could have been
issued for arrears of salary. The Competent Committee was yet to consider the
question of regularization under the U.P. Regularization of Adhoc Appointments
(on posts outside purview of U.P. Public Service Commission) Rules, 1979
(in short the 'Rules'). Reference was made also to certain decisions to hold
that once the order of termination is set aside, it is to be deemed that
incumbent had continued in service and would be entitled to salary and
allowances as if there was no break in service. It was also held that when an
authority acts in disregard to a settled position in law, the commission or
omission would amount to contempt even if such an act may not amount to willful
disobedience. The contempt court can act like an executing Court and can issue
further directions to compel the authority for taking action which is in
consonance with settled law. It was accordingly held that respondent no.1-the
applicant was entitled to arrears of salary from the date of his termination
upto the date of reinstatement in service. The contempt petition was
accordingly disposed of.
5. In support of the appeal, learned counsel for the appellant submitted that
it is not in dispute that no specific direction was given regarding arrears. In
fact, by office order no. NI (Lecturer) Yojana/1693-1/83/98-99 dated 10.8.1998,
it was clearly stipulated that the respondent no.1 shall not be paid salary for
the distributed period but shall be entitled for the benefit of increments
earned earlier as usual.
6. Learned counsel for the respondent no.1 submitted that the High Court had
rightly taken note of the fact that as order of termination was set aside, and
the natural consequence is payment of back wages. Merely because the earlier
order of the High Court did not specifically deal with this aspect that cannot
be a ground to deny the benefits to him.
7. While dealing with an application for contempt, the Court is really
concerned with the question whether the earlier decision which has received its
finality had been complied with or not. It would not be permissible for a
Court to examine the correctness of the earlier decision which had not been
assailed and to take the view different than what was taken in the earlier
decision. A similar view was taken in K.G. Derasari and Anr. vs. Union
of India and Ors. 4). The Court exercising contempt jurisdiction is
primarily concerned with the question of contumacious conduct of the party who
is alleged to have committed default in complying with the directions in the
judgment or order. If there was no ambiguity or indefiniteness in the
order, it is for the concerned party to approach the higher Court if according
to him the same is not legally tenable. Such a question has necessarily to be
agitated before the higher Court. The Court exercising contempt jurisdiction
cannot take upon itself power to decide the original proceedings in a manner
not dealt with by the Court passing the judgment or order. Right or
wrong the order has to be obeyed. Flouting an order of the Court would render
the party liable for contempt. While dealing with an application for
contempt the Court cannot traverse beyond the order, non-compliance of which is
alleged. In other words, it cannot say what should not have been done or what
should have been done. It cannot traverse beyond the order. It cannot test
correctness or otherwise of the order or give additional directions or delete
any direction.That would be exercising review jurisdiction while dealing with
an application for initiation of contempt proceedings. the same would be
impermissible and indefensible. In that view of the matter, the order of the
High Court is set aside.
8. If the appellant has any grievance so far as the order dated 10.8.1998 is
concerned denying him the arrears of salary, he may, if so advised, approach
the appropriate forum for such remedy as is available in law.
9. The appeal is allowed to the aforesaid extent with no order as to costs.