Kishun Oraon @ Kishnu Oraon, aged about 43 years, S/o Guman Oraon, R/o Vilalge v. 1. State of Jharkhand 2
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cont. Case (Civil) No. 349 of 2023 Kishun Oraon @ Kishnu Oraon, aged about 43 years, S/o Guman Oraon, R/o Vilalge Badri, P.O- Barsatu, P.S- bundu & District – Ranchi. ... ... ... ... Petitioner Versus 1. State of Jharkhand 2. Dr. Ehtesham Wakarib, S/o Not known to the petitioner, Superintendent of Police, Gumla, P.O, P.S. & District – Gumla. ... Opposite Parties/Contemnors … CORAM: SRI SANJAYA KUMAR MISHRA, C.J. ---------
Legal Reasoning
SRI ANANDA SEN, J. --------- For the Petitioner: For the Opp. Partis: Mr. Sidhartha Roy, Advocate Mr. Rahul Saboo, G.P.-II 06/Dated: 11.08.2023 --------- Upon hearing the learned counsel for the parties, this Court passed the following, (Per, Sanjaya Kumar Mishra, C.J.)
Decision
ORDER 1) By filing this Civil Contempt, the petitioner, a dismissed Constable of the Police Department, has alleged that there has been violation of the order passed by the Division Bench of this Court in L.P.A. No. 897 of 2019 which was disposed off along with I.A. No. 2142 of 2022 as per the detailed judgment dated 24.11.2022. 2) The facts of this case at this stage are not in dispute. The petitioner approached this Court by filing W.P. (S) No. 2086 of 2017 which was dismissed on merit on 13.06.2019. The present petitioner filed an intra court appeal which was registered as L.P.A. No. 897 of 2019. The Division Bench took into consideration the fact that the petitioner only gave the information to the other two Police Constables that the deceased Vinod Oraon, a co-villager of the petitioner, has links with terrorist organization like the Left Wing extremist. Such information led the other two police officials to pick -2- up the deceased from his house and bring him the police station where he was assaulted and in course of such assault it is submitted that that the deceased sustained injuries and succumbed to the injuries. A departmental proceeding was initiated against all the three police personnel and they were found to be guilty of the offence. However, the disciplinary authority imposed minor punishments of withholding six increments without cumulative effect against the other two police personnel, but as far as the present petitioner Kishun Oraon @ Kishon is concerned, it came to the conclusion his role is graver than the other two and, therefore, passed the order of dismissal from service. 3) It appears to us at this stage that the disciplinary authority was of the view that the action of the petitioner in instigating the other persons by giving false information that the Vinod Oraon is having links with left wing extremist is required to be dealt with more severely than the persons who made the actual assault. However, the Division Bench presided over by the then Chief Justice of this Court came to the conclusion that the punishment given to the petitioner is harsh in comparison of the punishment given to the other two accused persons/ delinquents and, therefore, remanded the matter back to the disciplinary authority for reconsideration of the matter. It is appropriate for us to quote the exact order passed by Division Bench:- “27. This Court conscious with the legal position that the High Court sitting under Article 226 of the Constitution of India cannot impose punishment upon the delinquent employee or even reduce it, rather, it is the domain of the disciplinary authority, therefore, the matter is required to be considered afresh by the respondents-authorities. -3- 28. Accordingly, the matter is remitted before the authority concerned to take decision afresh in accordance with law, within the period of three months’ from the date of receipt of copy of this order on the basis of the discussion made hereinabove.” 4) Trying to make out a case for contempt, the learned counsel for the petitioner would submit that once the Court has directed that the matter should be considered afresh on the basis of the discussions made in the preceding paragraphs of the judgment, non- compliance of the same itself makes out a case of contempt of court. 5) Civil Contempt has been defined under Clause (b) of Section 2 of the Contempt of Courts Act, 1971. It means willful disobedience of any judgment, decree, direction, order, writ or other process of a court of willful breach of an undertaking given to a court. Thus, if there is a violation of order or a decree, in which the respondent was given a positive direction, then it shall be called as a willful and deliberate disobedience of the Court’s order. But, in case the matter is matter remanded back to the disciplinary authority with certain observations in the body of the judgment, then the question arises whether it will amount to a contempt if the disciplinary authority takes a view different from the view taken by the Division Bench in course of discussions of the fact and law relating to the case in question. In this regard, we take note of the reported case of Abhishk Kumar Singh vs. G. Pattanaik and Others, 2021 (7) SCC 613, wherein while dealing with similar situation where the punishment was set aside and the matter was remitted back to the respondent for reconsideration by considering the segregation of the tainted from the untainted candidates. After consideration of -4- the matter and upon hearing of the petitioner in that case the respondent maintained the order passed earlier which was set aside, the Hon’ble Supreme Court held that:- “72. We would, therefore, confine our analysis as to whether the respondents were justified in passing subject termination Order dated 2-3-2020 without giving prior opportunity of hearing to the petitioners. In light of the conclusion reached by the respondents in the stated Order dated 2-3-2020 — that it was not possible to segregate the tainted from the untainted candidates, in law, it must follow that the respondents could annul the entire selection process and pass the impugned order without giving individual notices to the petitioners and similarly placed persons. We are fortified in taking this view in terms of the exposition in O. Chakradhar and the subsequent decisions of this Court in Joginder Pal , Veerendra Kumar Gautam and Vikas Pratap Singh v. State of Chhattisgarh , adverted to in para 13 of the judgment dated 15-11-2018 of this Court while disposing of earlier appeals between the parties. 73. In other words, since the respondents have concluded that it was not possible to segregate tainted from the untainted candidates because of the reasons noted in the termination Order dated 2-3-2020, in law, there was nothing wrong in the respondents issuing the said termination order without affording prior opportunity to the petitioners and similarly placed persons. Had it been a case of even tittle of possibility in segregating the tainted from the untainted candidates, which exercise the respondents were permitted to engage in, in terms of the decision of this Court dated 15-11-2018, it would have been a different matter. In that case alone, the petitioners and similarly placed persons could complain of wilful disobedience of the order passed by this Court dated 15-11-2018.” -5- 6) In this case, a show-cause has been filed. However, on a careful examination of the observations made by the Committee to which the matter was referred, it appears that the Committee has taken into consideration the facts of the case and has come to the conclusion the order of dismissal from service need not be modified. 7) It is true that the petitioner has grievances regarding the same. According to the learned counsel for the petitioner, the observations made by the Division Bench should have been taken into consideration and only on that basis the order for reconsideration should have been passed. But, we are not inclined to agree with such submissions, as it is the duties as well as the rights of the disciplinary authority to take a decision and further the High Court never substituted its decision on the quantum of punishment and remitted the matter back to the disciplinary authority. So, in our considered opinion, even after remand, the disciplinary authority does enjoy certain liberty or has scope of considering the matter and take an independent view. In this case, those matters were not placed before the Court like the role of the petitioner in the whole episode and a concrete conclusion which may not be consistent with the observations made by the Division Bench. Therefore, we are also of the view that such a matter cannot be held to be a contempt of court. If we accept learned counsel’s argument and hold that the respondents are guilty of contempt, then it will amount to adjudication of the issues of fact and law relating to the dispute between the department and the present petitioner. It is not permissible in a contempt application. In the contempt application, the Court in seisin of the -6- matter is only required to consider whether there has been a willful and deliberate violation of its order, decree, mandamus, etc. passed in the case. In this case, we find no such situation appearing. Moreover, our view is also supported by the latest judgment of the Supreme Court passed in Abhishek Kumar Singh (supra), wherein the Hon’ble Supreme Court has held that in a civil contempt, even if there is an interpretation/doubt that the order would not be contumacious in conduct and in such cases, contempt will not lie. 8) There is some delay in disposal of the matter after remand by the disciplinary authority, i.e., because of constitution of a Committee and the Committee again looked into the facts of the case and passed a reasoned order. For that the contemnor-respondent has begged unconditional apology in writing which is supported by an affidavit. In that view of the matter, this Contempt application is dropped. However, the petitioner is at liberty to approach the Court by filing appropriate writ, if so advised, in case the cause of action subsists. 9) Pending Interlocutory Applications, if any, stand disposed of. 10) There shall be no orders as to costs. 11) Urgent Certified copies as per Rules. (Sanjaya Kumar Mishra, C.J.) Manoj/MM (Ananda Sen, J.)