Heard Sri Ramesh Pandey, learned counsel for the applicant, Sri S.P. Tripathi, learned standing counsel for the opposite parties and perused the record.
Initially, the petitioner for redressal of his grievance, approached this Court by filing Writ Petition No.7750 (S/S) of 2009 ( Bindheshwari Prasad Dwivedi Vs. State of U.P. and others ) and on 1.12.2009 this court passed the following orders:-
"Issue notice to opposite pares nos. 4 and 5.
Submission of the learned counsel for the petitioner is that the eligible candidate for being promoted� to Class III by virtue� of the fact he is working on the said post since 01.10.1973. His further submission is that the petitioner is going to retire� within a period of one and a half years.. It is stated that no Class IV employee has been promoted on Class III post in promotee quota in the institution and the vacancy has been filled by direct requirement quota. He has placed reliance upon the decisions of this Court in the case of Jai Bhagwan Singh Vs. District Inspector of schools� Gautambudh Nagar and others, (2006)3 UPLBEC 2391 and� in Writ Petition No. 4380 of 2007� Vinod Kumar Singh Vs. D.I.O.S. Azamgarh and others decided on 29.6.2009.
The petitioner is already working� on the promoted post under the orders of the Administrator. The matter requires consideration.
In the above circumstances, it is hereby provided that the vacancy in question shall not be filled up by the direct recruitment quota till the petitioner does not retire or any order is passed vacating the present interim order.� As soon as the petitioner retires, the opposite parties will be at liberty to fill up the post by direct requirement quota. The salary of the petitioner shall also be paid in accordance with the entitlement of Class III post."
Sri Ramesh Pandey, learned counsel for applicant submits that inspite of directions given by this Court on 1.12.2009, salary has not been paid to the petitioner for the post in question.
He further submits that in view of the order dated 1.12.2009 there can be no other interpretation in the matter in question and opposite parties are bound to pay the salary to the petitioner on the post in question on which he is working in terms of the interim order dated 1.12.2009 passed by writ court keeping in view the decision given in the case Jai Bhagwan Singh Vs. District Inspector of schools� Gautambudh Nagar and others, (2006)3 UPLBEC 2391 and� in Writ Petition No. 4380 of 2007� Vinod Kumar Singh Vs. D.I.O.S. Azamgarh and others decided on 29.6.2009.
Sri Rameh Pandey , learned counsel for applicant also submits that in pursuance of order passed by writ court, applicant has already performed his duties on the higher post as such he is entitled for salary on the said post so action on the part of respondent thereby not paying salary to his clear violation of order passed by writ court liable to be punished/ Sri S.P. Tripathi, learned counsel for the respondent in rebuttal submits that although order dated 1.12.2009 passed after hearing the learned counsel for the petitioner as well as leaned Standing Counsel but writ court granted four week time to file counter affidavit thereafter petitioner may file rejoinder affidavit and also notices were issued to opposite parties no. 4 and 5 in the writ petition and as a matter of fact on record counter affidavit has been filed alongwith application for vacation of the interim order in Writ Petition No. 7750 (S/S) of 2009 pending consideration so the hearing of the contempt petition be deferred till application for vacation of interim relief moved by official respondents is not disposed of by the writ court.
In view of the above said fact , the first and foremost question which is to be decided in the present case is that if ex parte interim order is granted in favour of the applicant/ petitioner by writ court although after hearing the learned Standing Counsel appearing on behalf of the State/official respondents time granted to file counter affidavit. Subsequently, counter affidavit has been filed alongwith application for vacation of interim order and the said matter is pending for adjudication before the writ court then in that circumstances the contempt petition is maintainable or not; for alleged violation of the interim order passed by writ court in respect of payment of salary. Answer to the said question lies in the following judgments:-
In Crl. Misc. Case No. 2120(C) of 2010 (Javed Akhtar and another Vs. Sri Ravi Kant District Minority Welfare Officer, District Gonda and others), decided on 13.05.2008 this Court held as under :-
"Upon hearing the matter and upon considering the entire issue, this Court is of the opinion that the payment of salary from the State Exchequer is a serious business and should not be taken lightly. Public money can not be wasted, if at the end of the day, is found, that the salary to the applicants was not payable. The controversy, as to whether, the applicants are working in the institution or whether they are liable to be paid the salary from the State Exchequer is pending adjudication in the writ petition.
This Court as well as the Supreme Court in a large number of cases have consistently held that the contempt proceeding should not be proceeded against an interim order. This Court is of the firm opinion that in the present case, the matter requires adjudication from the Writ Court and that the matter should be finally resolved before the salary is paid to the applicants, if any."
In the case of Ram Ashish Ram Vs. Security Officer(H.C.) ALR 1991(18) 24, this Court held as under :-
"In my opinion, the respondents could have legitimate hope that their application for vacating stay order shall be decided on an early date. It is well established that the matter of contempt is between the court and the contemnor. The petitioner has only to invite the attention of court to the facts and circumstances in which according to him, contempt has been committed. It is for the Court to consider whether its contempt has been actually committed or not. In my opinion, it shall be highly unjust on the part of the Court not to decide the prayer for vacating the stay order and to punish the respondents for committing the contempt. If without deciding the matter of stay vacation the respondents for committing are held to have committed contempt, it will not be equitable on the part of the Court. It is different matter that the prayer for vacating stay order may not have merit, but a party, against whom an interim order is passed, has a legal right to agitate against the same under Article 226(3) of the Constitution."
In the case of Raj Rajan Vs. V.S. Vasudevan and another[(1995) 3 UPLBEC 1472], this Court held as under :-
"The contempt proceedings are not like executing a civil court in the contempt proceedings the applicant has to prove that has been a willful default but on the other hand the opposite party right to show that the order sought to be enforced was incapable of executed.
In the instant case, therefore, the opposite parties must have one opportunity to defend the ex parte interim order in the proceedings before the opposite parties are dragged before the Court. In the case of State of Jammu and Kashmir Vs. Mohd Yaqub and others (1992 4 SCC 167, the Supreme Court has disapprove the practice of enforcing the ex party interim orders in contempt proceedings. The Supreme Court held that so long the stay matter in the written was not finally disposed of, the further proceedings in the contempt was itself misconceived and no order therein should have been passed."
Hon'ble Apex Court in the case of State of Jammu and Kashmir Vs. Mohd. Yaqoob and others (1992) 4 SCC 167, clearly held that Whenever any stay vacation application has been filed for vacation of interim order, the proceedings of contempt should be deferred till disposal of such application.
Further, in Mohd. Yaqoob (supra) Apex Court has also disapproved the practice of enforcing the ex parte interim orders in contempt proceedings. The Supreme Court held that so long the stay matter in the writ petition was not finally disposed of the further proceedings in the contempt case was itself misconceived and no order therein should have been passed, observed as under :-
"We do not agree. The scope of a contempt proceedings is different from that of the pending main case yet to be heard and disposed of (in future). Besides, the respondents in a pending case are at a disadvantage if they are carry upon to meet the merits of the claim in a contempt proceedings at the risk of being punished. It is, therefore, not right to suggest that it should be assumed that the initial order of stay got confirmed by the subsequent orders passed in the contempt matter. High Court should first take up the stay matter in the writ case, and dispose it of by an appropriate order. Only thereafter it shall proceed to consider whether the State and its authorities could be accused of being guilty of having committed Contempt of Court."
In addition to the above said facts, while adjudicating the matter under Section 12 of the Contempt Court Act, in the case of Sushyant Somal Vs. Sushma Somal, AIR 1981 SC, the Supreme Court observed as under :-
"Nor is a person to be punished for contempt of court for disobeying an order of Court except when the disobedience being similar, even if not the same, has any criminal proceeding, where the person alleged to be a contempt is able to place before the Court sufficient material to conclude that is is impossible to obey the order. The Court will not be justified in punishing the alleged contemnor."
The Apex Court has expressed the similar view in the case of Niyaz Mohammad and others Vs. State of Haryana, (1994) 6 SCC 33 wherein it is held that the contempt proceedings are not be executing a civil court decree. In the contempt proceedings are not has to prove that there has been a willful default but on the other hand the opposite party has a right to show that the order sought to be enforced was incapable of being executed, So respondents must have a right of one opportunity to defend the ex parte interim order in the main proceedings before they are dragged before the Contempt Court.
A Division Bench of this Court while interpreting the provisons as provided under Sections 2(b), 12 and 19 of the Contempt of Court Act 1971 in the case of Shiv Lal , S.D.M. Mohoba Vs. Ram Babu Dwivedi 2006 (2) AWC 1272 in paras 17, 22and 23 which has held as under:-
"17. Thus, from a close analysis of the decisions of Hon'ble Apex Court referred herein before it appears that the three-Judges Bench of Hon'ble Apex Court in Mohd. Yaqoob Khan's case had held that so long the stay matter in the writ petition was not finally disposed of the further proceedings in the contempt case was itself misconceived and no orders should have been passed. The Hon'ble Apex Court has further held that in the circumstances of the case, the contempt proceeding is premature and liable to be ignored . In the aforesaid case the contempt proceedings were drawn on account of non-compliance of interim stay order against which stay vacation application of respondents in writ petition was pending before the High Court. The same view has been reiterated by two-Judges Bench of Hon'ble Apex Court in Modern Food Industries Case( supra) wherein final order of learned Single Judge was challenged at appellate forum of same High Court and stay application in appeal was pending consideration, meanwhile contempt proceedings were drawn to implement the order of learned Single Judge before disposal of stay application. In the aforesaid fact and situation of the case Hon'ble Apex Court has held that wherever the order whose disobedience complained about is appealed against and stay of its operation is pending before the Court, it will be appropriate to take up for consideration the prayer for stay either earlier or at least simultaneously with complaint for contempt. To keep the prayer for stay standby and to insist upon proceeding with the complaint for contempt might in many conceivable cases, as here, cause serious prejudice. Although in Dr. Phunindra Singh and others case ( supra) two-judges Division Bench of the Hon'ble Apex Court has taken different view in the matter without noticing earlier decision of larger and co-ordinate Bench but it was in a slightly different factual backdrop of the case, wherein the order passed by learned single Judge was not stayed by the Division Bench of the same High Court, the Hon'ble Apex Court has taken different view in the matter and has held that when the order passed by learned single Judge of the High Court was not stayed by Division Bench, the contempt petition should have been disposed of on merits instead of adjourning the same till disposal of appeal so that the question of deliberate violation of subsisting order of the Court is considered and enforceability of the Court's order is not permitted to be diluted. Again in Suresh Chandra Poddar's case (supra) two-Judges Division Bench of Hon'ble Apex Court has taken virtually same and similar view as was taken in first two cases referred earlier but without making reference of those case and in given facts and situation of the case under consideration Hon'ble Apex Court has held that not granting the stay by itself is not enough to speed up proceedings against a person in contempt because the very order is yet to become final. At any rate the Tribunal should have directed the appellant to implement the direction, in absence of stay order from the High Court, wherein a time frame fixed by it. We would have so and then considered whether the action should be taken in the event of the non-implementation of the order after expiry of said time frame."
22. Thus in vie of law laid down by the Hon'ble Apex Court we have no hesitation to hold that law laid down by earlier larger Bench of Hon'ble Apex Court will prevail over the later smaller Bench decision of the Hon'ble Apex Court , even if later smaller Bench of Hon'ble Apex Court considered the earlier larger Bench decision the same cannot be construed at variance with the larger Bench decision.
23. Now having regard to the law laid down by earlier larger Bench of Hon'ble Apex Court in Mohd. Yaqoob Khan's case followed in subsequent two- Judges Division Bench of Apex Court it was necessary for the learned Single Judge to defer/postpone the contempt proceedings till the disposal of stay vacation application moved against the interim order dated 4.4.2003 passed in writ petition or till the disposal of the stay application moved in special appeal or it was necessary for the learned single Judge to examine the bona fide of the respondents of the writ petition in moving such stay vacation application as well as in filing such special appeal against the interim order in question and come to a definite conclusion as to whether the respondents of the writ petition have genuinely and bona fide moved the stay vacation application and filed the special appeal or not. Unless such efforts were made by the learned single Judge it was not desirable for the learned single Judge to proceed with the contempt proceedings ."
Thereafter , learned single Judge of this Court after placing reliance on the judgment in Shiv Lal , S.D.M. Mohoba (supra) by judgement dated 11.1.2008 passed in Criminal Misc. Case NO. 1276 (c) of 2006 R.P. Agarwal Vs. Shri Tribhuwan Ram and others held as under:-
" In paragraph 22, it has been further held that " we have no hesitation to hold that law laid down by earlier larger Bench of Hon'ble Apex Court will prevail over the later smaller Bench decision of the Hon'ble Apex Court , even if later smaller Bench of Hon'ble Apex Court considered the earlier larger Bench decision the same cannot be construed at variance with the larger Bench decision.
Ultimately, in paragraph 23, it was concluded that in view of the judgment of the Apex Court in Mohd. Yaqoob Khan's cae , it was necessary for the learned single Judge to defer/postpone the contempt proceedings till the disposal of the Stay Vacation Application moved against the interim order."
Further, in Criminal Misc Case NO. 1841 (C ) of 2003 S.M. Sayeed Rizvi Vs. Sri R.K. Mittal, Principal Secretary Medical Health & Family Welfare U.P. Civil Secretariat , Lucknow and others vide judgment dated 10.1.2007 after placing reliance in the cases of Jammu & Kashmir Vs. Mohd. Yaqoob Khan & others (1992) 4 SCC 167 and Modern Food Industries( India) Ltd. & another Vs. Sachhidanand Dass and another, (1995) Sup. A4 SCC 465 this Court has held that if an application for vacation of stay order is pending for vacating the interim order , the contempt petition filed by the applicant under the Contempt of Courts Act for non compliance of interim order in respect to interim order is maintainable . It is further directed that the contempt petition is differed till disposal of the application for vocation of stay order in the writ petition.
In Crl. Misc. Case No. 694 (C ) of 2005 ( Ramesh Singh Vs. Mr. Sanjay Mohan and others ) one Sri Ramesh Singh initially approached this Court by filing Writ Petition No. 1400 of 1993 , disposed of vide order dated 1st September,2004 with the following directions:-
" The impugned order/ action denying the payment of slary to the teachers already appointed in pursuance of the directions issued by the State Government to appoint the teachers to teach additional subjects permission of which was granted by the State Government , are quashed. A writ in the nature of mandamus is issued commanding the opp. Parties to make payment of salary as well as arrears of salary to the petitioner in LT Grade from the date of his respective appointment within a period of three months."
Against which Special Appeal No. 424 of 2000 has been by official respondents alongwith application for interim relief pending disposal , contempt petition has been filed registered as Crl. Misc. Case no. 694 (C ) of 2005. After hearing Sri Ramesh Pandey learned counsel appearing on behalf of the petitioner and Sri Lalit Shukla, learned Additional Chief Standing Counsel on 13.12.2006 this Court passed the following orders:-
" Considering the facts and circumstances, I hereby defer the present contempt proceedings till the disposal of the special appeal and after disposal of the appeal it would be open for the learned counsels for the parties to move an application before this Court to proceed accordingly."
Considering the above said facts, this Court is of the opinion that the payment of salary from the State Exchequer is a serious business and should not be taken lightly. Public money can not be wasted, if at the end of the day, is found, that the salary to the applicants was not payable.
Further, I am of the opinion that an ex parte interim mandamus issued by this Court in regard to payment of salary, cannot be enforced by resorting to the provisions of the Act unless ex parte interim order passed by this Court is confirmed after hearing the opposite parties and respondents must have an opportunity to place sufficient material before the Court that the relief sought by the petitioner cannot be granted as he may not be entitled to the same or it is by no means desirable to grant such an equitable relief to prove a case before the writ court in the main case.
In view of the above said facts, the submission made by Sri S.N. Tripathi, learned standing counsel for the respondents that at least an opportunity be given to defend the ex parte interim order in the main proceeding before the respondents are dragged before the contempt court and an application for vacation of stay order moved alongwith counter affidavit in th writ petition be considered and disposed of has got force rather the same is in accordance with law as mentioned above.
For the foregoing reasons, the proceeding of the present contempt petition is deferred till disposal of the application for vacation of interim order filed by the respondents alongwith counter affidavit in the Writ Petition No.7750 (S/S) of 2009 ( Bindheshwari Prasad Dwivedi Vs. State of U.P. and others ).
However, liberty is given to the parties to move an application for listing of the present case after decision on application for vacation of the stay order.
Order Date :- 31.3.2011 dk/