MADHU JAIN Vs. KUNWAR SURAJ AVTAR

JUDGEMENT

(1.) Km. Madhu Jain, lecturer in the Department of Hindi in Sahu Gopinath Girls Degree College (now called Sahu Ram Swarup Mahila Vidyalaya) Bareilly, has moved this application for punishing Kunwar Suraj Avtar, Secretary/manager and Smt. Bimla Shukla, Principal of the College under Section 12 of the Contempt of Court Act, 1971. The basis of the application is the order dated 19-1-1979 passed by this Court in writ petition No, 5276 of 1978. The facts which are not disputed are these: The petitioner was selected for the post of lecturer and she joined on 8-9-1976. The Vice-Chancellor approved her appoint ment saying that her appointment was temporary upto 30-4-1977. By letter dated 9-5-1978, the Principal asked the petitioner to hand over charge of her post to Km. Girja Rani Misra. The petitioner made represen tations to the Vice-Chancellor as well as the Chancellor. But to no relief. Therefore, she filed writ petition against the Chancellor Ruhilkhand University and others. The operative part of the judgment in the writ petition read as follows: "for the reasons given above, we are satisfied that the order of the Vice Chancellor approving the appointment of the petitioner up to 30th June, 1977 on a temporary basis suffers from a manifest error of law. The petitioner was selected for a permanent post of Lecturer, and, therefore, her appointment will be deemed to be on probation for one year and the same probationary period will be deemed to have been extended upto 30th June, 1978, and the order of the Principal asking the petitioner to hand over charge on 13th May, 1978 are all illegal and must be quashed. " In the result the writ petition must succeed which is allowed. . . . . . The grievance of the petitioner is that the opposite parties did not obey the above order. It will thus appear that it is a case of civil contempt. Expression "civil contempt" has been defined in Section 2 (b) of the Act as "wilful disobedience to any judgment, decree, direction, order, writ. . . . . . . . . " In view of the definition of the expression "civil contempnt," the petitioner has not only to show disobedience of the order passed in the writ petition but has also to show that the disobedience was wilful. Word 'disobedience' means neglect/disregard or refusal to obey. Word 'wilful' means deliberate or inten tional. The petitioner has alleged in the petition that on 29-1-1979 she wrote a letter to the Secretary through the Principal bringing to his notice about the judgment in her favour and seeking permission to join her duties (Annexure 1 ). On the same day she wrote a letter to the Secretary to the said effect (Annexure 2 ). On 30-1-1979 the Principal informed her that her letter had been forwarded to the Secretary (Annexure 3 ). By letter dated 5-2-1979, the Secretary informed her that a copy of the judgment of the High Court was not available and that she should furnish a true copy of the same (Annexure 4 ). Along with the letter dated 15-2-1979, she sent a photostat copy of the certified copy of the judgment by Registered post to the Secretary (Annexure 5 ). The petitioner then contacted both the opposite parties on 16-2- 1979 and told them that she had sent a copy of the judgment by registered post (para 17 ). The opposite parties told her that the copy of the judgment had not yet been received, The petitioner then alleged that she met the opposite parties on 17-2-1979 and they told her that they had received copy of the judgment and that they had no intention of reinstating her and that she might seek her remedy again in the High Court. They added that the judgment of the High Court had no binding force on them and it could not be complied with (para 19 ). This is the real basis of the present petition. The petitioner filed this application for taking action against the opposite parties on 22-2-1979 i. e. 5 days after having met the opposite parties on 17-2-1979. Both the opposite parties filed separate counter-affidavits. In these affidavits both the opposite parties denied the allegation of the petitioner contained in para 19 of the petition. They deposed that the petitioner did not meet them on 17-2-1979 and that they did not tell her that the judgment of the High Court had no binding force and that it would not be complied with. They also did not tell her that they had no intention of reinstating her and that she should seek her remedy again in the High Court. The opposite party No. 1 further asserted that leave petition to file appeal was filed in the Supreme Court, that by order dated 26-3-1979, the Supreme Court had stayed proceedings in the contempt petition, that ultimately the Supreme Court granted leave to appeal on 26-8-1980 and that on the said date the Supreme Court vacated the order staying proceedings in the contempt petition. The opposite party No. 1 also mentioned that by means of letter dated 19-9-1980, the petitioner sought permission to resume her duties, that its reply was sent on 15-10-1980 saying that she had incorrectly mentioned that she had come to join the College, that he had to consult the committee and take legal advise on the representation of the petitioner, that thereafter on 11-12-1980, he wrote to the petitioner to contact the Principal for resuming her duties, that another letter dated January 15/20, 1981 was sent to the petitioner asking her to join her forthwith and that the petitioner then joined on 27-1-1981. Smt. Bimla Shukla, Principal, further deposed that the petitioner had wrongly alleged that she met her on 16-2- 1979 (para 17 of the petition), that she had gone to Delhi to attend a conference from 13th to 16th February. 1979 and that on 16-2-1979 She was not in the College and was at Delhi in connection with a seminar. Tej Bhan Singh, brother of the petitioner filed separate rejoinder affidavits denying the allegations made in the counter-affidavits and reiterated the allegations made in the petitioner's affidavit filed in support of the petitioner. He further deposed that the alleged letter dated 11-12-1980 sent by the opposite party No. 1 was never received by the petitioner and that the petitioner intimated so through a registered letter dated 26-1-1981. He further deposed that by letter dated 21-1-1981, the Assistant Director of Higher Education directed the Principal to allow the petitioner to join her duties. It was on account of this letter that she was permitted to join on 27-1-1981. Learned counsel for the parties were heard at length. The petitioner's counsel referred to the case of Kedar Nath Sinha v. Sahdeo Jha and others 1977 Cr. L. J. 1174. In this case there were positive overt acts in writing of the Secretary of the Bihar Madhyamik Shiksha Board, respondent No. 4, the Managing Committee of the School and the Head Master which clearly indicated that they disobeyed the order of the High Court passed in the writ petition. Therefore, all the 4 respondents were found guilty of the contempt of Court. Suffice it to say that some overt act on the part of the contemners has to be established by the petitioner. In the present case the only overt act which has been attributed to the opposite parties is contained in para 19. In this paragraph the petitioner alleged that she met the opposite parties on 17-2-1979, that at that time the opposite parties told her that they had no intention of reinstating her, that she should seek her remedy again in the High Court, that the judgment of the High Court in the writ petition had no binding force on them and that it would not be complied with. In support of these allegations there is the affidavit of the petitioner and no other piece of evidence to corroborate it. Both the opposite parties have clearly denied the said allegations in their counter-affidavits. The learned counsel for the opposite parties has assigned some reasons to show that the allegations of the petitioner were not correct. They are: (1) Immediately after 17-2-1979, the petitioner did not write to the opposite parties that they had committed contempt of the High Court by saying that the judgment of the High Court had no binding force on them it would not be complied with. (2) The petitioner made no complaint to any authority of the Education department stating that on 17-2- 1979 the opposite parties blankly told her that they had no intention to reinstate her, that the judgment of the High Court had no binding force on them and that it would not be complied with. (3) Smt. Bimla Shukla, Principal, deposed in para 12 of her counter-affidavit that the petitioner had not met her on 16-2-1979 as alleged in para 17 of the petition because on that date she was in Delhi, attending a seminar. Tej Bhan Singh has not admitted the contents of para 12 of her counter-affidavit. This non-admission/denial is simply vague. He has not specifically stated that on 16-2-1979, Smt. Bimla Shukla was not at Delhi and that she was at Bareilly. It will be noticed that Tej Bhan Singh has not deposed that he had gone to the opposite parties on 16-2-1979, along with his sister, the petitioner. There is no assertion of the petitioner that on 16-2-1979, she met the opposite parties along with his brother Tej Bhan Singh. It means that Tej Bhan Singh has denied the allegation contained in para 12 of the counter-affidavit just by the way. In case the petitioner can make a wrong allegation in respect of 16-2-1979, she can also make a wrong allegation in respect of 17-2-1979. (4) The order passed by this Court in the writ petition did not contain any specific direction and that no particular date for compliance was fixed. The opposite parties had a right to move the Supreme Court to grant special leave to appeal. The opposite parties, with a view to file an appeal in the Supreme Court, would obtain a certified copy of the order of this Court. In taking the copy sometime will be spent. Then some time will be taken in consulting an Advocate and in getting an application for special leave to appeal prepared. In these circumstances it is not easily believable that just after about a month of the decision of the- writ petition, the opposite parties could have boldly told the petitioner that they had no intention of reinstating her, that she could seek her remedy again in the High Court, that the judgment of the High Court had no binding force on them and that it would not be complied with. Giving careful consideration to the contentions of the learned counsel for the opposite parties. I am of the view that there is great force in the contentions. Therefore, I would not be justified in accepting/believing the allegations contained in para 19 of the petition. The necessary result which follows is that the petitioner has failed to show any overt act on the part of the opposite parties from which it can be held that the opposite parties disobeyed the order passed in the writ petition, what to say of wilful disobedience of the said order. The learned counsel for the petitioner contended that the sub sequent conduct of the opposite parties should also be taken into considera tion. He means to say that the opposite parties did not permit the petitioner to join her duties immediately after the decision of the writ petition and that they allowed her to join her duties on 27-1-1981 i. e. two years after the decision of the writ petition and that the opposite parties did not give her part. The petitioner's counsel urged that this undue delay on the part of the op posite parties should be considered to indicate that the opposite parties had no intention to obey the order passed in the writ petition earlier. The learned counsel for the opposite parties contended that this case was not set up by the petitioner in her petition. Subsequent conduct is relevant and can be considered under Section 8 of the Indian Evidence Act. This section lays down that the conduct of any party in reference to any fact in issue and conduct of any person, or offence against whom is the subject of any proceeding is relevant and whether it was previous or subsequent. The petitioner's counsel has referred to the case of Surendra Kumar and others v. Gyan Chand and others A. I. R. 1957 S. C. 875. In this case the plaintiffs brought a suit on the basis of a mortgage. They claimed to be the legatees under registered will of their maternal grand-father. The defence pleaded that they had no knowledge of the will and that there fore the plaintiffs were not the legal representatives of the mortgage and as such no locus-standi to sue. The probate of the will was granted by the District Judge in favour of the appellants and their mother. The plaintiff-appellants wanted to bring the probate on record. The Supreme Court admitted the probate observing that in deciding the appeal it had to take the circumstances as they were at the time when the appeal was being decided and that the judgment in seam having been passed in favour of the appellants was necessary and could be admitted. This case is not of help to the petitioner. Its reason is that there was a positive judgment pronounced during the pendency of the case. No judgment or order was passed in favour of the petitioner or against the opposite parties during the pendency of this contempt application. But as said above the subsequent conduct is relevant and can be considered under Section 8 of the Evidence Act. It is undoubtedly clear that the opposite parties allowed the petitioner to join her duties 2 years after the decision in the writ petition. The Supreme Court had not stayed the operation of the order passed in the writ petition. But on this account it cannot be inferred that the allegations made in paragraph 19 were correct. Assuming for a moment that the petitioner met the opposite parties on 17-2-1979, it is but expected that the opposite parties would have told her that they had an intention to file an appeal in Supreme Court and that she should wait till then. In case the opposite parties told so to the petitioner, it would not amount to wilful disobedience of the order passed in the writ petition. The matter has to be judged from another aspect. If. the opposite parties did not call upon the petitioner to join, it was an act of omission on the part of opposite parties. In other words, the opposite parties can be said to have committed an act of non-feasance (omission of some thing which ought to have been done ). Taking into consideration the definition of the expression "civil contempt", it is obvious that the alleged offender cannot be punished for non-feasance unless it is culpable. The offender can only be punished for an act of misfeasance (doing a lawful act in a wrongful manner) or mal-feasance (doing of what one ought not to do i. e. an illegal deed ). In this aspect of the matter on account of the alleged delay on the part of the opposite parties, the opposite parties cannot be said to have committed civil contempt punishable under Section 12 of the Act. In case salary was not given, she could sue for it's recovery. Taking into consideration all what has been discussed above, it is not at all a fit case in which the opposite parties can be held guilty of the contempt of Court. Hence the opposite parties cannot be punished as desired by the petitioner. The learned counsel for the opposite parties contended that the petitioner had acted in hot haste and the petition was wholly premature. This contention seems to be well founded because according to the petition itself, the petitioner moved this application just after 5 days of the alleged conduct of the opposite parties. She did not allow the opposite parties sufficient time to seek their remedy in the Supreme Court. For what has been found above, the petition is dismissed. .