GIAN CHAND BALI Vs. LJ SINGH

JUDGEMENT

(1.) The Judgment of the Court was delivered by:- This application under section 3 and 4 & the Contempt of Courts Act No 32 of 1952 against (1) Shri I. P. Singh. I. 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 notified 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 notified 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 notice 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 notice 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 not 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 notice of the Court some specific instances in which he has not 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 otherwise 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 notice to the Judgment debtor and its officers as to why they should not be committed to poison and their pronerty attached according to law. The Subordinate Judge issued a show auss notice 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 not 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' notice 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 wilfully 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 notice of retirement was served on the petitioner on 23rd August 1963 anil was therefore, 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 protest went unheeded and he was not 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 got, had the decree been carried out by the Judgment-debtor. Wilful disobedience of the order of the Court of the Subordinate Judge is alleged to constitute a wilful 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 notice 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 not 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 notice only to respondents Nos. 4 and 5 (Shri S. C. Bhatnagar and Shri K. R Chandel), apparently leaving the matter against the other 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 not 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. Notice to retire Shri Bali on attaming the age of 55 years by giving him three months' notice 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 not be in the public interest as in his state of mind, and in view of his service record, he would not serve any useful parpose as a Government servant and would not 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 notice 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.