Letters Patent Appeal No. 751 of 2002 · Patna High Court
Case Details
Patna High Court LPA No.751 of 2002 (9) dt.05-07-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.751 of 2002 In Miscellaneous Jurisdiction Case No. 1912 of 2000 CONV.AS Miscellaneous Jurisdiction Case No.1383 of 02 ====================================================== Bihar State Electricity Board, through the Secretary, Vidyut Bhawan, Bailey Road, Patna. .... .... Appellant/s Versus 1. Ram Chandra Yadav, adopted son of Late Birat Gope, resident of Village Ghuthia, P.S. Magadh Medical College, District- Gaya. 2. Shri Shivendu (Name of father not known to the petitioner), Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 3. Shri P.K. Jaiswal, (Name of father not known to the petitioner), Joint Secretary, Bihar state Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 4. Shri S.W. Ahmad (Name of father not known to the petitioner), General Manager-cum-Chief Engineer, Central Bihar Area Electricity Board, Patna. 5. Shri Nagendra Rai (Name of father not known to the petitioner), Electrical Superintending Engineer, Electrical Circle, Gaya. 6. Shri Janardhan Sharma (Name of father not known to the petitioner), Assistant Electrical Engineer, Urban Electric Supply Sub-Division No. II, Golpathar, Gaya. 7. Shri N.K. Agrawal, Chairman, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 8. Shri Manoj Kumar Shrivastave, Member (Revenue), Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna.
Legal Reasoning
with by this Court in several cases. In Union of India v. Subedar Devassy it was held as follows: “2. 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 a view different from what was taken in Patna High Court LPA No.751 of 2002 (9) dt.05-07-2013 4 the earlier decision. A similar view was taken in K.G. Derasari v. Union of India. 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 party concerned 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 the power to decide the original proceedings in a manner not dealt with by the court passing the judgment or order. Though strong reliance was placed by learned counsel for the appellants on a three-Judge Bench decision in Niaz Mohd. V. State of Haryana, we find that the same has no application to the facts of the present case. In that case the question arose about the impossibility to obey the order. If that was the stand of the appellants, the least it could have done was to assail correctness of the judgment before the higher court.” 12. In Lalith Mathur v. L. Maheswara Rao it was inter alia held as follows : “3. The above will show that the High Court has directed the state Government to absorb the respondent against a suitable post either in a government department or in any public sector undertaking. This order, in our opinion, is wholly without jurisdiction and could not have been made in proceedings under the Contempt of Courts Act or under Article 215 of the Constitution.” Patna High Court LPA No.751 of 2002 (9) dt.05-07-2013 5 We have considered the submissions made on behalf of the Appellant. In C.W.J.C. No. 1115 of 2002 mandamus had been sought for compassionate appointment. It had been rejected by the Board on the ground that under its Standing Order No. 756 an adopted child was not eligible under for compassionate appointment. The contention on behalf of the petitioner therein was relying on 1994 (2) PLJR 536 (Kamal Ranjan v. The State of Bihar) that an adopted son could not be denied consideration for compassionate appointment. The writ application was permitted to be withdrawn to first seek a declaration from a competent Civil Court of being an adopted son. In the Suit, the Board was not made a party. The registered deed of adoption on basis of which the claim was made, was itself not produced in evidence but still decree was granted. The court framed the question that would it still be open for the Board to deny or dispute the adopted status. The conclusion was that in the facts of the case the declaration of being an adopted son could not be forced on the Board. The facts in the present case are fundamentally different. The Board itself recognized the status of the respondent as an adopted son and paid the post death retirement benefits of the deceased to the respondent. We fail to understand the conduct Patna High Court LPA No.751 of 2002 (9) dt.05-07-2013 6 of the Board in recognizing the respondent as an adopted son of the deceased for one purpose and denying that status for other purpose. It is not the case of the Board that it has taken steps for recovery against the respondent of the payments made to him in his capacity as an adopted son of the deceased. The Board cannot approbate and reprobate. The only objection taken on behalf of the Board is that the suit was barred under Section 58 of the Limitation Act. The objection is not only without jurisdiction but also lacks bona fides as wholly extraneous consideration. In our opinion (Lalith Mathur) or N. Vasudeva Rao (supra) are not appropriately applicable in the facts of the case. The directions in the contempt application were but consequential to the direction for fresh consideration of compassionate appointment after a declaration by the Civil Court. If the Appellant was approbating and reprobating even after the decree of the Civil Court, recognizing it as valid for giving post death retirement benefits of the deceased to the respondent as an adopted son, the Court in contempt jurisdiction did not pass any fresh orders/directions but gave consequential directions only. The contempt jurisdiction is not confined to passing orders for punishment only. In appropriate cases, in Patna High Court LPA No.751 of 2002 (9) dt.05-07-2013 7 addition to orders of punishment the Court also has the power to undo the wrong done to person. Compliance of a Court order does not mean a formal or sham compliance. It must be substantive compliance. Therefore in appropriate cases, where the compliance is incomplete or a sham not in the true spirit of the order, the court has the jurisdiction to pass necessary consequential orders for the enforcement of its direction. In (2008) 14 SCC 115 ( Anil Kumar Shahi v. Prof. Ram Sevak Yadav) it has been observed at paragraph 50 as follows:- ``50. It is by now well settled under the Act and under Article 129 of the Constitution of India that if it is alleged before this Court that a person has willfully violated its order it can invoke its jurisdiction under the Act to enquire whether the allegation is true or not and if found to be true it can punish the offenders for having committed “civil contempt” and if need be, can pass consequential orders for enforcement of execution of the order, as the case may be, for violation of which, the proceeding for contempt was initiated. In other words, while exercising its power under the Act, it is not open to the Court to pass an order, which will materially add to or alter the order for alleged disobedience of which contempt jurisdiction was invoked. When the Court directs the authority to consider a matter in accordance with law, it means that the matter should be considered to the best of understanding by the authority and, therefore, a mere error of judgment with regard to the legal position cannot constitute contempt of Court. There is no wilful Patna High Court LPA No.751 of 2002 (9) dt.05-07-2013 8 disobedience if best efforts are made to comply with the order.” The respondent was approximately 19 years on 02.02.1991. Today he would be in his early 40‟s. Obviously, he must have established himself in life based on the income that he has been earning, and incurred social and civic liabilities. At this stage, to oust him from service shall be doing gross in justice to him. The word „justice‟ does not have strict connotation and its interpretation will always vary from case to case. In the peculiar facts of the case when the Board accepts his adopted status for one purpose but seeks to question it for another purpose, we are not satisfied to entertain the appeal. Learned counsel for the Appellant submitted that compassionate appointment is not a matter of right and even if any benefits have been given to the respondent in the capacity of an adopted son that would not automatically entitle him to continue in service. The argument does not Appeal to us. The Board cannot blow hot and cold simultaneously.
Arguments
9. Shri A.K. Vishwakarma, Member (Generation), Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 10. Shri Manohar Lal, Member (Transmission & Distribution), Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 11. Shri A.K. Upadhayay, Secretary, Energy Department, Govt. of Bihar. 12. Shri M.N. Prasad, Secretary, Finance Department, Govt. of Bihar. .. .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Vinay Kirti Singh Mr. Vijay Kumar Verma. For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA and HONOURABLE MR. JUSTICE VIKASH JAIN ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 9 05-07-2013 We have heard counsel for the Appellant. The present Appeal arises from order dated 20.05.2002 in MJC No. 1912 of 2000. Patna High Court LPA No.751 of 2002 (9) dt.05-07-2013 2 The respondent claimed to be the adopted son of Late Birat Gope, a Class-IV employee in the Board. He was appointed on compassionate grounds on 01.02.1992. The Medical assessment of age was 19 years as on 02.02.1991. The Board released post death retirement benefits i.e. Gratuity amount, Leave Encashment, G.P.F. Account, Group Saving Claims and other relevant payments of late Birat Gope in favour of the respondent recognizing him as the adopted son. His services were terminated in 1997 for non production of a certificate under the Adoption and Maintenance Act. In C.W.J.C. No. 564 of 1998 liberty was given that he may approach the Civil Court of competent jurisdiction for a declaration that he was the validly adopted son. The First Subordinate Judge, Gaya in Title Suit No. 48 of 1999 dated 31.01.2000 declared the respondent to be the adopted son of late Birat Gope. The respondent petitioned on 04.05.2000 for cancelling the termination order. The Board called upon him to produce the plaint and written statement etc. The Board contended that the Suit filed for declaration was itself barred under Section 58 of the Limitation Act and not withstanding the decree reiterated its earlier decision in support of the termination. The learned Single Judge held that the conduct of the Board was not bona fide in questioning the decree of a Patna High Court LPA No.751 of 2002 (9) dt.05-07-2013 3 competent Civil Court on the precocious plea that it was not a party in the Suit. The learned Single Judge held that the crux of the issue was the conduct of the Board in recognizing the respondent as an adopted son for one purpose and declining to recognize him as such for another purpose. Directions were therefore given to appoint which was complied with subject to the present Appeal. Learned counsel for the Appellant submitted that no such directions for appointment could have been given in a contempt application. He next submitted relying on C.W.J.C. No. 1115 of 2002 that the decree was not binding on the Board. Reliance was also placed on (2007) 14 SCC 165 (Special Deputy Collector (LA) vrs. N. Vasudeva Rao) at paragraphs 10 and 12 as follows:- ``10. The law as to nature of order that can be passed in contempt proceedings had been elaborately dealt
Decision
The Appeal is dismissed. (Navin Sinha, J) (Vikash Jain, J) Md. Ibrarul/-