STATE OF ORISSA AND ANR.versusASWINI KUMAR BALIARSINGH

    l




A                        STATE OF ORIS SA AND ANR.
                                          v.
                        ASWINI KUMAR BALIARSINGH

                                AUGUST 8, 2006

B                (S.B. SINHA AND DALVEER BHANDARI, JJ.]


          Contempt of Courts Act, 1971:

          Contempt jurisdiction-Exercise of-Ambit and scope, explained.
c
           The respondent was appointed as an Assistant Teacher. The
    Inspector of Schools did not approve his appointment. A writ petition was
    filed by him, wherein by an order dated 3.9.1997 the High Court directed
    the Inspector of Schools to do so. The said order was carried into effect
D   by posting him as Assistant Teacher in a school by an order dated
    19.2.1999. He was removed from service on or about 27.5.2000 in terms
    of the Government Orders. These government orders are under challenge
    in the original application filed by the respondent before the State
    Administrative Tribunal which is pending. He also filed an application for
    initiating proceedings under Contempt of Courts Act before the High
E   Court, inter alia, against the Inspector of Schools for alleged disobedience
    of the said order dated 3.9.1997. The High Court set aside the said order
    of the Inspector of Schools dated 27.5.2000 and directed the appellants to
    take the respondent back in service and to give him appropriate posting
    within one month therefrom. It was further directed that arrears of salary
F   should be paid to him as early as possible, preferably within six months
    from the date of his joining. Hence, this appeal.

          It was contended by the appellant that the High Court exceeded its
    jurisdiction in issuing the aforementioned directions.

         It was contended by the respondent that while exercising its contempt
G jurisdiction, the High Court may, in a given case, issue appropriate
    direction, although no penal action is taken against the contemnors.

         Allowing the appeal, the court
                                                                                   -
H                                      388
           STA TE OF ORIS SA v. AS WINI KUMAR BALIARSINGH [SINHA, J.]        389

           HELD: 1.1. The cause of action for filing the contempt petition arose A
     as the Inspector of Schools passed an order consequent upon the
     Government Orders which the Inspector of Schools was bound to give
     effect to. The said Government orders may be legal or illegal; by no stretch
}-
     of imagination, it can be said that the Inspector of Schools committed
     contempt of court in complying with the directions of the State of Orissa. B
     The said Government Orders having been issued subsequent to the order
     of the High Court, no direction indisputably had been or could be issued·
     in that behalf in the writ petition. A contempt petition, thus, was not
     maintainable. The High Court in relation thereto did not have the
     jurisdiction. (391-C-F)

          L. Chandra Kumar v. Union of India and Ors., AIR (1997) SC 1125:
                                                                                     c
     (1997) 3 sec 261, referred to.

            1.2. While exercising its contempt jurisdiction, the High Court may,
     in a given case, issue appropriate direction, although no penal action is
     taken against the contemnors. However a finding would be required to            D
     be arrived at to the effect that the contemnors have disobeyed the order
     of the Court. Only when such a finding is arrived at, the court may in
     exercise of its inherent jurisdiction put the parties to the same position as
     if its order was not violated. [391-G-H; 392-A-B]

           All India Regional Rural Bank Officer Federation and Ors. v. Govt. of     E
     India and Ors., (2002] 3 SCC 554 and Director of Education, Uttaranchal
     and Ors. v. Ved Prakash Joshi and Ors., (2005] 5 SCALE 529 : (2005] 6
     sec 98, relied upon.
          CIVIL APPELLATE JURISDICTION : Civil Appe~I No. 7472 of2003.
                                                                                     F
           From the Judgment and Order dated 18.7.2002 of the High Court of
     Orissa at Cuttack in Original Criminal Misc. Case No. 594/2001.

          Jana Kalyan Das for the Appellants.

          Rajib Roy, Anukul Chandra Pradhan and Pranab Kumar Mullick for             G
     the Respondent.

          The Judgment of the Court was delivered by

          S.B. SINHA, J. The respondent herein was appointed as an Assistant
     Teacher. The Inspector of Schools did not approve his appointment. A writ       H
    390                      SUPREME COURT REPORTS [20061 SUPP. 4 S.C.R.

A petition was filed by him, wherein by an order dated 3.9.1997 the High Court
    directed the Inspector of Schools to do so. The said order was carried into
    effect by posting him as Assistant Teacher in a school by an order dated
     19.2.1999. He joined the said school. He acquired the qualification in May,
    1999. He was removed from services on or ahout 27.5.2000 in terms of the
    Government Orders bearing No.11667/SME dated 24.4.2000 and No.13680/
B   SME dated 11.5.2000 stating that he did not have the requisite qualification
    as on 7.6.1994. Indisputably, an original application has been filed by the
    respondent before the State Administrative Tribunal bearing No.1678(C)/
    2000, which is pending. He also filed an application for initiating proceedings
    under Contempt of Courts Act before the High Court, inter alia, against the
C   Inspector of Schools for alleged disobedience of the said order dated 3.9.1997.
    By reason of the impugned judgment, the High Court set aside the said order
    of the Inspector of Schools dated 27.5.2000 and directed the appellants to
    take the respondent back in service and to give him appropriate posting
    within one month therefrom. It was further directed that arrears of salary
D   should be paid to him as early as possible, preferably within six months from
    the date of his joining.

          The submission of Mr. J.K. Das, learned counsel appearing for the
    appellant was that the High Court exceeded its jurisdiction in issuing the
    aforementioned directions.
E         Mr. Rajib Roy, learned counsel appearing on behalf of the respondent,
    on the other hand, submitted that the High Court had the requisite jurisdiction
    to pass the impugned order in terms of the provisions of Contempt of Courts
    Act.

F         Our attention was also drawn to the fact that even on a previous occasion
    the Inspector of Schools did not comply with the order of the High Court
    dated 3.9.1997 and the respondent had initiated a proceeding for contempt
    against them.

          Tht contemnors were not impleaded in the contempt proceedings in
G their personal capacity, but were impleaded in their official capacity. In O.J.C.
    No.3298/96 the High Court in issuing the direction by its order dated 3.9.1997,
    relied on an earlier judgment dated 27.6.1997 [Bibekananda Das v. State of
    Orissa) passed in 0.1.C. No.1012/96, stating:

               "For the reasons stated in the aforesaid judgment dated 27.6.1997
H           and the subsequent order dated 3.9.1997, we direct the Inspector of
      STATE OF ORISSA v. ASWINI KUMAR BALIARSINGH [SINHA. J.] 391

       Schools to approve the appointment of the petitioner with effect from        A
       7.6.1994 and pay him the scale of pay of an assistant teacher (untrained
       graduate) with effect from the said date. The arrears, if not already
       paid, may be calculated and paid to him within a period of four
       months of receipt of writ. The Inspector of Schools will continue to
       pay to the petitioner the current salary in the untrained graduate scale     B
       of pay. We make it clear that the Inspector of Schools will give the
       petitioner reasonable time to acquire the B.Ed. qualification (unless
       he gets exemption under the relevant rules). Annexure-4 is accordingly
       quashed."

       Thus no direction was issued by the High Court against the State of          C
Orissa. It is not in dispute that the cause of action for filing the contempt
petition arose as the Inspector of Schools passed an order consequent upon
the Government Orders issued by the Government of Orissa on or about
24.4.2000. The Inspector of Schools was bound to give effect to the said
orders. The said Government orders may be legal or illegal; but by no stretch
of imagination, it can be said that the Inspector of Schools committed contempt     D
of court in complying with the directions of the State of Orissa. For the
purpose of setting aside the order of the Inspector of Schools, the Government
Orders were required to be set aside. The said Government Orders having
been issued subsequent to the order of the High Court, no direction indisputably
had been or could be issued in that behalf in the writ petition. A contempt         E
petition, in our opinion, thus, was not maintainable.

       Further more, as noticed hereinbefore, the respondent had already
initiated a proceeding before the State Administrative Tribunal questioning
the legality of the said action on the part of the State of Orissa. The High
Court in relation thereto did not have the jurisdiction, as an appropriate          p
proceeding was required to be initiated before the Tribunal at the first instance
in view of the judgment of this Court in L. Chandra Kumar v. Union ofIndia
& Ors., AIR (1997) SC 1125 : [1997] 3 SCC 261. The contemnors, in any
event, having not been impleaded as parties in their personal capacity. In the
contempt petition only Director of Secondary Education and Inspector of
Schools were impleaded as parties in their official capacity. Even the State        G
of Orissa was not impleaded as a party respondent therein.

       The learned counsel, however, may be correct in contending that while
exercising its contempt jurisdiction, the High Court may, in a given case,
issi.e appropriate direction, although no penal action is taken against the         H
    392                     SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A contemnors. But, even in respect thereof, a finding would be required to be
    arrived at to the effect that the contemnors have disobeyed the order of the
    Court. Only when such a finding is arrived at, the court may in exercise of
    its inherent jurisdiction put the parties to the same position as if its order was
    not violated.
                                                                                         •

B         In All India Regional Rural Bank Officer Federation & Ors. v. Govt.
    of India & Ors., [2002] 3 SCC 554, whereupon reliance has been placed,
    such a direction was issued, but only after a finding was arrived at, that the
    Central Government had issued a notification in utter violation of the orders
    passed by th is Court.
c         In Director of Education, Uttaranchal & Ors. v. Ved Prakash Joshi &
    Ors., (2005) 5 SCALE 529 : [2005] 6 SCC 98, whereupon again reliance has
    been placed by Mr. Roy, this Court opined:

           " .......The court exercising contempt jurisdiction is primarily concerned
D          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 concerned party to approach the higher Court if
           according to him the same is not legally tenable. Such a question has
           necessarily tv be agitated before the higher court. The court exercising
E          contempt jurisdiction cannot take upon itself power to decide the
           original proceedings in a manner not dealt with by the Court passing
           the judgment or order. Right or wrong the order has to be obeyed.
           Flouting an order of the court would render the party liable for
           contempt. While dealing with an application for contempt, the Court
           cannot traverse beyond the order, non-compliance of which is alleged.
F          In other words, it cannot say what should not have been done or what
           should have been done. It cannot traverse beyond the order. It cannot
           test correctness or otherwise of the order or give additional direction
           or delete any direction. That would be exercising review jurisdiction
           while dealing with an application for initiation of contempt
G          proceedings. The same would be impermissible and indefensible."

           In the instant case, the action taken by the respondents in purported
    violation of the Court's order arose owing to a subsequent cause of action,
    namely, orders passed by the state of Orissa and unless the said orders were
    set aside, the Inspector of Schools can be said to have flouted the order of
H   the High Court. The said decisions, therefore, have no application in the
       STATE OF ORISSA v. ASWINI KUMAR BALIARSINGH [SINHA, J.]      393
instant case.                                                              A
      For the reasons aforementioned, the impugned judgment cannot be
sustained. It is set aside accordingly. The appeal is allowed. No costs.

B.K.                                                    Appeal allowed.