Delhi High Court
Ajay Kumar Bhalla & Ors. vs Prakash Kumar Dixit on 16 December, 2024
Author: C. Hari Shankar
Bench: C. Hari Shankar, Anoop Kumar Mendiratta
$~61
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 157/2024
AJAY KUMAR BHALLA & ORS. .....Appellants
Through: Mr. Ruchir Mishra, Mr.
Mukesh Kr. Tiwari, Ms. Reba Jena Mishra
and Ms. Harshita Sharma, Advs.
versus
PRAKASH KUMAR DIXIT .....Respondent
Through: Mr. Sanjoy Ghose, Sr. Adv.
with Mr. Anand Shankar Jha, Mr. Parve
Rahman and Mr. Rohan, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
JUDGMENT (ORAL)
% 16.12.2024
C. HARI SHANKAR, J.
1. This appeal assails judgment dated 2 June 2023 passed by a
learned Single Judge of this Court in Cont Cas (C) 198/2020.
2. Our remit is limited.
3. WP (C) 1525/2019 was instituted by the respondent, who was
working as Deputy Commandant in the Central Reserve Police Force1,
against the Union of India2 and other respondents, challenging order
dated 16 October 2018 whereby he was removed from service,
following disciplinary proceedings. A Division Bench of this Court,
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1 “CRPF” hereinafter
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2 “UOI” hereinafter
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by judgment dated 24 January 2019, partly allowed the writ petition,
concluding thus:
“34. For all of the aforementioned reasons, the order dated
16th October, 2018, passed by the DIG (CR&VIG) in the
Directorate General, CRPF, imposing the penalty of removal from
service on the Petitioner, is hereby set aside. The minor penalty as
decided by the DA viz., “reduction to a lower stage in the scale of
pay by one stage for a period not exceeding 3 years, without
cumulative effect and adversely affecting pension” will be the
penalty in the Petitioner’s case.
35. Consequently, the Petitioner is directed to be forthwith
reinstated in service, with all consequential benefits, but without
any back wages. The date of reinstatement will relate back to the
date of his having been originally removed from service i.e.
10th July 1995, for the purposes of pay fixation, seniority and all
other consequential benefits including promotions. The
consequential orders by way of implementation of this judgment
be issued not later than 8 weeks from today.”
4. Aggrieved at the fact that the directions of the Division Bench
in the above judgment dated 24 December 2019 were not being
implemented, the respondent filed Cont Cas (C) 198/2020. The
appellants were impleaded as the alleged contemnors.
5. In the interregnum, the Union of India assailed the above
judgment of the Division Bench before the Supreme Court by way of
Civil Appeal 3970/2020. By the following order dated 7 December
2020, the Supreme Court disposed of the SLP:
“1. There is a delay of 183 days on the part of the Union of
India in moving the Special Leave Petition under Article 136 of
the Constitution in challenging the judgment and order of the Delhi
High Court dated 24 December 2019 in Writ Petition (C) No. 1525
of 2019.
2. Delay condoned.
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Digitally Signed By:AJIT
KUMAR 3. Leave granted.
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4. Mr. Sanjay Jain, learned Additional Solicitor General
appearing on behalf of the appellants, submits that the observations
contained in paragraph 33 of the impugned judgment and order of
the Delhi High Court would dilute the OM dated 5 December
2006. A specific portion of the OM has been relied upon by the
learned ASG, which is as follows:
“If in the opinion of the Secretary of the Ministry of Personnel,
Public Grievances and Pensions, there is a case for disagreement
with the advice of UPSC in a disciplinary or other matter (other
than appointment cases) in respect of services/posts for which it is
the controlling authority, a proposal will be placed before the
Committee of Secretaries for its consideration. Thereafter, the case
will be submitted to the Minister-in-charge/Prime Minister, as the
case may be, along with the opinion of the Committee of
Secretaries. In cases of appointment, however, the matter will be
placed before the Minister-in-charge/Prime Minister directly and if
the decision of Minister involves non-acceptance of the advice of
the Commission, the case would be referred to the ACC for a final
decision.”
5. Mr. Ankur Chhibber, learned counsel has appeared on
behalf of the respondent.
6. In the present case, it is evident from the letter dated 1
September 2016 of the UPSC that as a matter of fact there was no
disagreement within the meaning of the above OM. The UPSC
stated as follows:
“10. The Commission also observe that the DA, after
considering the representation of the CO, has tentatively
decided to impose a minor penalty on the CO. In this
context, it is stated that in so far as the Commission is
concerned, the advice in the instant case was tendered to
the Department based on the records of the case forwarded
by the Department at that point of time. Since no new fact
has come to light, or has been brought on record, further
consultation with the Commission is not necessary at this
stage. The Department is, therefore, advised that it is for
the DA to accept the Commission’s advice or to take an
independent view. Further, since the DA has already
proposed to impose another penalty, it is not appropriate to
comment further in the matter.”
7. The above extract indicates that after taking note of the
penalty that was proposed by the disciplinary authority, the UPSC
specifically observed that “it was not appropriate to comment
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Digitally Signed By:AJIT taken an independent view”. This indicates that there was no
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disagreement. Mr. Sanjay Jain’s submission that this part of the
advice of the UPSC is “surplusage” is not borne out from a bare or
textual analysis of the communication.
8. Hence, in the above factual situation, as it has emerged
before the Court, we are in agreement with the ultimate conclusion
of the High Court that there was no disagreement between the
advice of the UPSC so as to invoke the application of the above
OM. We are confining our opinion to the ultimate conclusion
which has been arrived at by the High Court on the facts of the
present case. However, it needs to be clarified that the impugned
judgment and order shall not be construed in any other case as
having interpreted the OM dated 5 December 2006 since the
decision has turned on the above facts.
9. The appeal is disposed of, with the above clarification.
10. Compliance with the judgment and order of the High Court
be effected within three months from today.”
6. By order dated 8 March 2021, the Union of India reinstated the
respondent in service. However, para 35(iv) of the order substituted
the penalty of reduction to a lower stage in the scale of pay by one
stage for a period not exceeding 3 years, without cumulative effect
and adversely affecting pension, but made the penalty effective from 8
March 2021. The paragraph read:
“(iv) The penalty of ‘reduction to a lower stage in the time scale
of pay by one stage for a period not exceeding three years, or till
the date of his superannuation i.e. 31.03.2023, whichever is earlier,
without cumulative effect and without adversely affecting pension’
is hereby imposed upon Shri Prakash Kumar Dixit, Ex-Assistant
Commandant, the Petitioner from the date of issuance of this
order.”
7. Pursuant to the above order, the respondent re-joined service
with the CRPF on 16 March 2021, as Assistant Commandant.
8. The appellant also filed compliance affidavits before the learned
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Single Judge, in Cont Cas (C) 198/2020, asserting that, in view of the
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passing of the order dated 8 March 2021, no case for contempt
survived.
9. Before the learned Single Judge, the respondent contended, per
contra, that the Division Bench had, in its judgment dated 24
December 2019, specifically directed that the substituted minor
penalty of reduction to a lower stage in the scale of pay by one stage
for a period not exceeding 3 years, without cumulative effect and
without adversely affecting pension would be effective from 10 July
1995. Ergo, it was submitted, in making the penalty effective from
the date of issuance of the order dated 8 March 2021, the appellant
had committed contempt of this Court. The appellants, in reply,
submitted that an order of punishment could never be retrospective
and relied, for the purpose, on the judgment of the Supreme Court in
State Bank of Patiala v Ram Niwas Bansal3.
10. More importantly for the present appeal, the respondent also
contended that, by making the minor penalty effective from 8 March
2021, the appellants were seeking to deny, to the respondent,
promotion to the rank of Additional Director General4/Inspector
General5 in the CRPF, which was held by his immediate junior. The
appellants, in response to this contention, asserted that, as the minor
penalty imposed on the respondent would remain in operation for 3
years from 8 March 2021, he was not entitled to consideration for
promotion as ADG till then.
11. During the pendency of Cont Cas (C) 198/2020, the UOI
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3 (2014) 12 SCC 106
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4 “ADG” hereinafter
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amended para 35(iv) of the order dated 8 March 2021 supra, to make
the substituted minor penalty of reduction to a lower stage in the scale
of pay by one stage for a period not exceeding 3 years, without
cumulative effect and without adversely affecting pension effective
from 16 October 2018. The substituted para 35(iv) read thus:
“The penalty of ‘reduction to a lower stage in the time scale of pay
by one stage for a period not exceeding three years, without
cumulative effect and without adversely affecting pension’ is
hereby imposed upon Shri Prakash Kumar Dixit, Ex-Assistant
Commandant, w.e.f. 16.10.2018.”
12. The respondent contended, before the learned Single Judge, that
this amendment continued to remain contemptuous of the judgment
dated 24 December 2019, which had specifically made the substituted
minor penalty of reduction to a lower stage in the scale of pay by one
stage for a period not exceeding 3 years, without cumulative effect
and without adversely affecting pension effective from 10 July 1995.
It was further contended that the respondent would be entitled for
consideration for all future promotions after 9 July 1998 (when the
period of 3 years’ punishment, reckoned from 10 July 1995, would
come to an end), with effect from the dates when his immediate junior
secured promotion. Among these would include consideration for
promotion to the grade of IG w.e.f. 24 December 2019. Even if the
minor penalty were to take effect on 16 October 2018, it was
submitted that the respondent would be entitled for consideration for
promotion till the rank of IG w.e.f. 2021 till his superannuation on 31
March 2023.
13. Further, during the pendency of Cont Cas (C) 198/2020, a
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KUMAR 5 “IG” hereinafter
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review DPC met on 14 March 2023, to consider the case of the
respondent for promotion as Deputy Commandant. Consequent on the
recommendations of the review DPC, the UOI passed order dated 22
March 2023, promoting the respondent as Deputy Commandant on
notional basis w.e.f. 17 October 2021, when the 3 year period of the
minor punishment imposed on him, reckoned from 16 October 2018,
came to an end. The order further stated that the respondent was not
eligible for consideration for further promotions, as 5 years’ residency
period and 2 years’ mandatory field service as well as completion of a
pre-promotional course was essential therefor.
14. The learned Single Judge has, by the impugned judgment dated
2 June 2023, disposed of Cont Cas (C) 198/2020.
15. The learned Single Judge has agreed with the respondent’s
contention that he was entitled to have the minor penalty of reduction
to a lower stage in the scale of pay by one stage for a period not
exceeding 3 years, without cumulative effect and without adversely
affecting pension implemented w.e.f. 10 July 1995, and not w.e.f. 16
October 2018. This has been framed, by the learned Single Judge in
the impugned judgment, as “Issue No. 1”.
16. The learned Single Judge proceeds, thereafter, to deal with
“Issue No. 2”, which is framed as “Petitioner’s entitlement, if any, to
promotion to higher ranks”. This is followed by a detailed discussion
of the rival contentions regarding the entitlement of the respondent for
further promotion as IG. On this aspect, the discussion and findings
of the learned Single Judge, and the resultant conclusions, to the
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extent relevant, read thus:
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“47. It is a matter of record that the Petitioner’s immediate junior
held the post of IG, as on 14.09.2021 when the Respondent(s) first
considered the Petitioner’s case for promotion in compliance with
the judgment of the Division Bench. The Petitioner’s immediate
junior, was promoted to the post of ADG on 01.02.2023.
49. In the facts of this case, the obstinate denial of the
Respondent(s) to give effect to the judgment of the Division Bench
in favour of the Petitioner is writ large. The Petitioner was served
with a charge sheet on 06.09.1989 and penalty of “removal from
service” was imposed on the Petitioner on 10.07.1995. The said
order imposing penalty of removal from service, after four (4)
rounds of litigation was first set aside on 30.11.2012 by the
Division Bench of Madhya Pradesh High Court and the Petitioner
was directed to be reinstated. The Respondent(s) acted upon the
said order dated 30.11.2012 belatedly on 12.08.2015 and while
reinstating the Petitioner, the Respondent(s) immediately placed
him under deemed suspension w.e.f. 10.07.1995, until further
orders.
50. Though the Petitioner made representation against his
deemed suspension on 05.10.2015, the Respondent(s) failed to take
any further steps in the disciplinary proceedings, which remained
pending. It was during the pendency of a writ petition filed before
this Court that the Respondent(s) took the final decision on
16.10.2018 reiterating their decision of imposing penalty of
“removal from service” on the Petitioner. The said order dated
16.10.2018 was set aside by the Division Bench by its judgment
dated 24.12.2019 holding that the Respondent(s) herein had fallen
in serious error in the manner in which the Petitioner’s case has
been dealt with and in these facts and circumstances set aside the
order dated 16.10.2018 and directed his reinstatement from
10.07.1995. The Respondent(s) issued the Reinstatement order on
08.03.2021 and the Petitioner re-joined CRPF on 16.03.2021.
51. In the facts and circumstances of this case at this juncture
it is pertinent to refer to the decision of a Division Bench of this
court in Nb. Subedar (Skt) Jasbir Singh v UOI6, wherein the court
held that, an officer cannot be denied his promotion if he is unable
to fulfil the eligibility criteria due to the wrongs committed by the
department. Further this court in the case of Satish Kumar
Kehtarpal v Director General CISF7, held that the officer’s
inability to complete the pre-promotional course on account of the
fault of Departmental authorities must not come in the way of
officers being granted notional promotion.
52. In the light of decisions discussed above it can be reckoned
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6 2004 SCC OnLine Del 1026
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7 2017 SCC OnLine Del 7491
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that Petitioner cannot be refused promotions because of the
Respondents’ failings, for the reason that period from 10.07.1995
till 16.03.2021, wherein the Petitioner was prevented from serving
in active duty was solely on account of the acts and omissions of
the Respondent(s), as is evident from the judicial record. The
inability of the Petitioner, therefore, to render mandatory field
service or to complete residency period and pre promotional
courses is only on account of circumstances created by the
Respondent(s).
53. The Petitioner has rightly contended that the Reinstatement
order at paragraph 35 (v) expressly states that for the purpose of
promotion the intervening period, i.e. 10.07.1995 to 23.12.2021,
shall be treated as period ‘On Duty’. Thus, for the purposes of
granting notional promotion to the Petitioner, the Respondent(s)
were bound to consider the Petitioner ‘on duty’ for the said period
and therefore, the reasons cited in the order dated 22.03.2023 for
denying promotion is contrary to paragraph 35 (v) of the
Reinstatement order and the unequivocal direction issued by the
Division Bench vide judgment dated 24.12.2019. The paragraph
35(v) of the Reinstatement order reads as under:
“The intervening period w.e.f. 10.07.1995 to 23.12.2019
(i.e. one day before the Hon’ble High Court of Delhi order
dated 24.12.2019 in WPC No. 1525/2019) will be treated
as ‘period not spent on duty’ under the provisions of FR-
54-A, except for the purpose of pension, pay fixation,
seniority and other consequential benefits including
promotions, as per the directions passed by the Hon’ble
High Court of Delhi vide order dated 24.12.2019 and
upheld by the Hon’ble Apex Court vide order dated
07.12.2020.”
(Emphasis supplied)
54. The learned ASG has, however, sought to explain the said
direction at paragraph 35 (v), by merely stating that promotion is
not a matter of right.
55. This Court is unable to accept the said submission of the
learned ASG and is of the opinion that considering the fact that the
promotion which was being offered to the Petitioner was notional
and not actual, the Respondent(s) in light of the judgment dated
24.12.2019 are obligated to grant notional promotion to the
Petitioner to the post held by his immediate junior, Mr. R.D.S.
Sahi.
56. The judgment of the Division Bench was passed on
24.12.2019, however, the record of this contempt petition would
Signature Not Verified evidence that the Respondent(s) made piecemeal compliance of the
Digitally Signed By:AJIT judgment under the pain of the orders passed in this petition. This
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would be evident from the fact that (i) the Reinstatement order was
passed on 08.03.2021 and the Petitioner rejoined on 16.03.2021;
(ii) the Respondent(s) sought to impose the minor penalty w.e.f.,
08.03.2021 despite the fact that the Division Bench had
unequivocally directed that the Petitioner is to be reinstated w.e.f.,
10.07.1995. In the bargain, the Respondent(s) contested these
proceedings to deny the relief of promotion; (iii) The
Respondent(s) after many a flip-flop amended its stand to impose
the minor penalty w.e.f., 16.10.2018 and consequently, on
22.03.2023 granted promotion for one rank to the post of Deputy
Commandant; and (iv) the issue surviving for compliance is the
notional promotion of the Petitioner to the posts of Second-in-
Command, Commandant, DIG, IG and ADG, since the Petitioner’s
immediate junior Mr. R.D.S. Sahi held the post of IG since
29.07.2016 and as on the date (12.08.2021) when the Petitioner
was considered for promotion to give effect to the directions issued
in the judgment dated 24.12.2019.
57. This Court is of the opinion that learned ASG, appearing on
behalf of the Respondent(s) has sought to explain the denial of
promotion to the Respondent(s) on the facts enumerated in the
written note handed over to the Court during the course of hearing
on 28.03.2023 to contend that the Petitioner herein cannot be
compared in view of the service rendered by his immediate junior,
who served on actual duty for more than thirty-seven (37) years
whereas the Petitioner herein spent approximately, eight (8) years
in physical duty.
58. This Court is of the opinion that neither the Respondent(s)
nor this Court in the exercise of its jurisdiction in the contempt
petition can evaluate the right of the Petitioner to be granted the
notional promotion, which has already been directed to be granted
by the Division Bench vide judgment dated 24.12.2019. The
Respondent(s) do not have any discretion in this matter and as
directed by the Division Bench at paragraph 35 of the judgment
dated 24.12.2019, the Respondent(s) only had to issue
consequential directions to implement the judgment. Even,
presently, since the Petitioner has superannuated on 31.03.2023,
the grant of promotion to the Petitioner would only be notional and
would have bearing on his rank, the pay fixation, seniority,
subsistence allowance and the consequential benefits.
59. According to paragraph 4 of the Office Memorandum
(‘OM’) dated 14.09.1992 filed by the Respondent(s) along with the
reply dated 03.03.2023, it is necessary for the authorities to ensure
that the disciplinary case/criminal prosecution instituted against
any Government servant is not unduly prolonged and that all
efforts should be made to conclude the proceedings expeditiously
Signature Not Verified so that the need for keeping the case of a Government servant in a
Digitally Signed By:AJIT sealed cover is limited. However, in the facts of this case, it can be
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seen that the findings of the DPCs from 1995 have been kept in
sealed cover and have not been acted upon due to the ongoing
inquiry since the year 1995. The Respondent(s) action in this case
plainly demonstrates non-compliance of the OM dated 14.09.1992
and the flagrant disregard for Division Bench’s judgment dated
24.12.2019.
60. This Court is, therefore, of the opinion that the
Respondent(s) order dated 22.03.2023 declining to grant further
promotions to the Petitioner beyond the rank of Deputy
Commandant is in violation of the unequivocal directions issued
by the Division Bench vide judgment dated 24.12.2019.
61. The issuance of the Reinstatement order dated 08.03.2021
seeking to initially impose the minor penalty w.e.f., 08.03.2021; its
modification on 10.03.2023 to impose the minor penalty w.e.f.,
16.10.2018; the order dated 14.09.2021 declining to grant
promotion to the Petitioner to the rank of Deputy Commandant; a
fresh review on the issue of promotion and the grant to the rank of
Deputy Commandant vide order dated 22.03.2023, all the aforesaid
orders while evidencing a flip-flop on the stands taken by the
Respondent(s) also evince the lack of willingness to comply with
the judgment dated 24.12.2019 in its letter and spirit. The
unwillingness of the Respondent(s) to grant the benefit of reliefs
directed by the Division Bench vide judgment dated 24.12.2019 is
writ large on the face of the record.
62. The contention of the learned ASG that the Petitioner must
assail the order dated 22.03.2023 in an independent writ petition
or seek clarification of the judgment dated 24.12.2019 in the
disposed of writ petition is not persuasive as in the opinion of this
Court, the intent and directions issued by the Division Bench with
respect to the promotion are clear and unambiguous. Further,
directing the Petitioner herein to start a fresh proceeding would be
a travesty of justice and a mockery of the legal proceedings which
culminated with the passing of the final judgment dated
24.12.2019 and which has been further upheld by the Supreme
Court by its order dated 07.12.2020.
63. The Petitioner in his written submissions dated 02.03.2023
had stated that even if the date of implementation of minor penalty
is considered to take effect from 16.10.2018, he would be entitled
to all promotions till the rank of IG from the year 2021, till his date
of retirement, i.e. on 31.03.2023. The learned counsel for the
Petitioner had relied upon the said submission during the course of
hearing dated 03.03.2023 and submitted that the Petitioner would
be satisfied if he is granted the rank of IG as on the date of his
retirement.
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Digitally Signed By:AJIT 64. This Court is, therefore, of the opinion that there is willful
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disobedience by the Respondent(s) of the directions issued by the
Division Bench with respect to the implementation of the
directions issued at paragraph 35 of the judgment dated 24.12.2019
with respect to pay fixation, seniority and all other consequential
benefits including promotion.
65. This Court accordingly holds the Inspector General of
Police (Pers.) and DIG (Pers), who held office as on 22.03.2023,
guilty of Contempt of Court under Section 2 (b) of the Contempt of
Courts Act, 1971 for willful disobedience of the directions issued
by the Division Bench at paragraph 34 and 35 in judgment dated
24.12.2019.
66. This Court, however, grants an opportunity of six (6) weeks
to the aforesaid Contemnors to issue a fresh order granting
promotion to the Petitioner to the rank of IG to bring him at par
with his immediate junior as per the merit cum seniority list at the
time of the appointment.
67. In case, the Contemnors do not issue appropriate orders
granting promotion to the Petitioner to the rank of IG within the
time granted by this Court, the matter will be heard for sentencing
on the next date of hearing.”
(Emphasis supplied throughout except in extract of para 35(v) in
para 53)
17. The appellants filed Cont App (C) 35/2023, under Section
19(1)8 of the Contempt of Courts Act, 1971, assailing the impugned
judgment dated 2 June 2023 of the learned Single Judge.
18. On 13 February 2024, the appellant withdrew Cont App (C)
35/2023 with liberty to seek appropriate remedies available in law.
19. The appellants, thereafter, filed the present LPA, assailing the
impugned judgment dated 2 June 2023 of the learned Single Judge.
8 19. Appeals.–(1) An appeal shall lie as of right from any order or decision of the High Court in the
exercise of its jurisdiction to punish for contempt– (a) where the order or decision is that of a single judge, to
a Bench of not less than two judges of the Court; (b) where the order or decision is that of a Bench, to the
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Supreme Court : Provided that where the order or decision is that of the Court of the Judicial Commissioner
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20. By order dated 10 May 20249, a Division Bench of this Court
dismissed the present LPA, holding that an appeal lay, under Section
19 of the Contempt of Courts Act, only an against an order imposing
punishment for contempt, and as the learned Single Judge had, in the
impugned order dated 2 June 2023, not done so, despite finding the
appellants to be guilty of contempt, no appeal lay. The submission of
the appellants that the learned Single Judge had also proceeded to
find, on merits, that the respondent was eligible for promotion as IG
and that, therefore, the said finding was amenable to challenge in
appeal, was rejected. The Division Bench expressed the view, in this
regard, that the findings of the learned Single Judge, in the impugned
order dated 2 June 2023, apropos the entitlement of the respondent to
promotion as IG, were only rendered in the context of the finding of
contempt, and could not be regarded as independent findings. We
deem it appropriate to reproduce the following paragraphs from the
order dated 10 May 2024:
“34. It is obvious that the import of the order, which is alleged
to have been violated, has to be necessarily examined for
determining whether the same was wilfully disobeyed. In our view,
the learned Single has done precisely that. It is in that context that
the learned Single Judge has examined the question whether the
respondent was entitled to promotions in terms of the directions
issued by the Division Bench in its judgment dated 24.12.2019.
35. It is material to note that it was the respondent’s case that
the directions issued by the Division Bench expressly protected his
rights regarding promotions. There is no cavil that the Division
Bench had expressly directed that “the date of the respondent’s
reinstatement will relate back to the date of his having been
originally removed from service, that is, 10.07.1995, “for the
purposes of pay fixation, seniority and all other consequential
benefits underlying, including promotions.” The observations made
by the Division Bench regarding the respondent’s entitlement to
promotion are clearly for the purposes of considering whether the
said direction was violated.
Signature Not Verified
Digitally Signed By:AJIT
9 Ajay Kumar Bhalla v Prakash Kumar Dixit, 311 (2024) DLT 724 (DB)
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36. The learned Single Judge considered the rival contentions
and held that the appellants were obligated to grant notional
promotion to the respondent to the post held by his immediate
junior. The learned Single Judge further observed that neither the
appellants nor the court in exercise of jurisdiction in contempt
could evaluate the right of the respondent to be granted notional
promotion. Paragraph 33 of the impugned judgment is relevant and
is reproduced herein below:–
“33. This Court is of the opinion that neither the
Respondent(s) nor this Court in the exercise of its
jurisdiction in the contempt petition can evaluate the right
of the Petitioner to be granted the notional promotion,
which has already been directed to be granted by the
Division Bench vide judgment dated 24.12.2019. The
Respondent(s) do not have any discretion in this matter and
as directed by the Division Bench at paragraph 35 of the
judgment dated 24.12.2019, the Respondent(s) only had to
issue consequential directions to implement the judgment.
Even, presently, since the Petitioner has superannuated on
31.03.2023, the grant of promotion to the Petitioner would
only be notional and would have bearing on his rank, the
pay fixation, seniority, subsistence allowance and the
consequential benefits.”
37. In view of the above, we are unable to accept the
contention that the learned Single Judge has embarked upon a fresh
adjudication of a dispute that was not central to the question
whether the appellants had wilfully disobeyed the judgment dated
24.12.2019 passed by the Division Bench of this Court. The
learned Single Judge’s analysis of the rival contentions is in the
context of ascertaining whether the appellants had wilfully
disobeyed the directions issued by the Division Bench on
24.12.2019.
38. Insofar as the reference to Paragraph no. 41 is concerned, it
is apparent that the Court has granted an opportunity to the
appellants to take steps to mitigate their offending acts, by issuing
a fresh order, granting promotion. Paragraph 41 of the impugned
judgment must necessarily be read in context of Paragraph 40 of
the said decision. The same are set out below:–
“40. This Court accordingly holds the Inspector General
of Police (Pers.) and DIG (Pers), who held office as on
22.03.2023, guilty of Contempt of Court under
Section 2(b) of the Contempt of Courts Act, 1971 for
willful disobedience of the directions issued by the
Signature Not Verified Division Bench at paragraph 34 and 35 in judgment dated
Digitally Signed By:AJIT 24.12.2019.
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41. This Court, however, grants an opportunity of six
(6) weeks to the aforesaid Contemnors to issue a fresh
order granting promotion to the Petitioner to the rank of IG
to bring him at par with his immediate junior as per the
merit cum seniority list at the time of the appointment”
39. In our view, Paragraph No. 41 of the impugned judgment
cannot be read in isolation as deciding any additional issue or
issuing any further directions. It only grants the
appellants/contemnors an opportunity to issue fresh orders after the
Court had concluded that the appellants were guilty of wilful
disobedience of the order dated 24.12.2019.
40. The appellants’ contention that an additional matter has
been decided by the learned Single Judge and therefore, an appeal
is maintainable in terms of Paragraph No. 11(V) of the decision of
the Supreme Court in Midnapore Peoples’ Cooperation Bank
Ltd. v. Chunilal Nanda10 is addressed by the aforesaid
clarification that the learned Single Judge has not decided – and it
could not decide – any issue outside the scope of the contempt
petition.
41. The second question to be considered is whether an appeal
under Clause 10 of the Letters Patent Appeal is maintainable in
respect of an order passed in contempt proceedings
notwithstanding, the remedy under the Contempt of Courts Act,
1971. Section 19 of the Contempt of Courts Act, 1971 provides the
statutory remedy from any order or decision of the High Court in
exercise of the jurisdiction to punish for contempt. Section 19(1) of
the Contempt of Courts Act, 1971 is set out below:–
*****
42. Concededly, an appeal under Section 19 of the Contempt of
Courts Act, 1971 is not maintainable against the impugned
judgment. As discussed above, the learned Single Judge has not
passed any order adjudicating the merits of any dispute between
the parties, which would entitle the appellants additional remedies
as contemplated under Paragraph no. 11(V) of the decision
in Midnapore Peoples’ Cooperation Bank Ltd. v Chunilal Nanda.
43. It is also apparent that Section 19 of the Contempt of
Courts Act, 1971 does not make any distinction between a ‘civil
contempt’ or a ‘criminal contempt’.
44. We are unable to accept that the appellants have an
additional remedy under the Letters Patent Appeal in respect of
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10 (2006) 5 SCC 399
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matters in regard to which statutory remedies are provided. It is
settled law that there is no inherent right of appeal. The same is a
matter of statutory prescription. If a statute circumscribes the scope
of an appeal, the appellate remedies must necessarily be exercised
within the said contours. The appellants have a statutory right of an
appeal under Section 19 of the Contempt of Courts Act,
1971 albeit only in respect of an order imposing punishment. Thus,
the present appeal is premature.
*****
50. It is also well settled that in such proceedings an order
finding a person guilty is inchoate till a punishment is awarded.
The provisions of Contempt of Courts Act, 1971 are structured to
provide the consequences for committing contempt of court. The
orders passed in that sense would be complete only after the final
decision is rendered, which would be after the court decides on the
sentencing, having found the party guilty of contempt.
51. Before concluding, we may also note that during the course
of proceedings, Mr. Vaidyanathan has sought time to take
instructions whether a clarification to the effect that the
observation made in the impugned judgment are not to be
construed as adjudicating any rights of the respondent other than
examining whether there has been any wilful disobedience of the
order of the Court, would suffice.
52. He submitted that if the observations made by the Court in
the impugned judgment are not construed as crystalising any rights
in favour of the respondent and are only read as confined to the
question whether the appellants have committed any wilful
disobedience of the order of the Court, the appellants would be
satisfied.
53. In view of our understanding of the impugned judgment as
noted above, the learned Single Judge has not decided any dispute
regarding the rights and obligations of the parties other than
whether the appellants had committed contempt of court. All
observations made by the learned Single Judge must be read only
for the purposes of determining whether the appellants had wilfully
violated the judgment dated 24.12.2019 issued by this Court.”
21. The observations contained in this order are of stellar
significance, insofar as the present appeal is concerned. The Division
Bench acknowledged the legal position that the learned Single Judge
could not have decided any substantive issue regarding the entitlement
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of the respondent to promotion while adjudicating the Contempt
Petition. The LPA was dismissed as, in the view of the Division
Bench, the learned Single Judge had not done so. We say that these
observations are of stellar significance because the Supreme Court,
subsequently, went on to hold that the learned Single Judge has, in
fact, in the impugned order dated 2 June 2023, decided the
substantive entitlement of the respondent for promotion as IG – which,
as the Division Bench correctly held, could not have been done while
adjudicating the Contempt Petition.
22. The appellants challenged the above judgment, dated 10 May
2024, of the Division Bench in the present LPA, before the Supreme
Court by way of Civil Appeal 8129-8130/2024. The Supreme Court,
by judgment dated 29 July 202411, disposed of the Civil Appeals, and
we deem it appropriate to reproduce the relevant paragraphs from the
judgment thus:
“12. The narrow issue which falls for consideration at the
present stage is as to whether the Letters Patent Appeal against the
order of the Single Judge dated 2 June 2023 was maintainable.
13. The law on the subject is settled by a judgment of a two
Judge Bench of this Court in Midnapore Peoples’ Coop. Bank
Ltd. v Chunilal Nanda. Paragraph 11 of the decision sums up the
principles succinctly as follows:
“11. The position emerging from these decisions, in
regard to appeals against orders in contempt proceedings
may be summarised thus:
I. An appeal under Section 19 is maintainable
only against an order or decision of the High Court
passed in exercise of its jurisdiction to punish for
contempt, that is, an order imposing punishment for
contempt.
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11 Ajay Kumar Bhalla v Prakash Kumar Dixit, 2024 SCC OnLine SC 1874
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II. Neither an order declining to initiate
proceedings for contempt, nor an order initiating
proceedings for contempt nor an order dropping the
proceedings for contempt nor an order acquitting or
exonerating the contemnor, is appealable under
Section 19 of the CC Act. In special circumstances,
they may be open to challenge under Article 136 of
the Constitution.
III. In a proceeding for contempt, the High
Court can decide whether any contempt of court has
been committed, and if so, what should be the
punishment and matters incidental thereto. In such a
proceeding, it is not appropriate to adjudicate or
decide any issue relating to the merits of the dispute
between the parties.
IV. Any direction issued or decision made by
the High Court on the merits of a dispute between
the parties, will not be in the exercise of
“jurisdiction to punish for contempt” and, therefore,
not appealable under Section 19 of the CC Act. The
only exception is where such direction or decision is
incidental to or inextricably connected with the
order punishing for contempt, in which event the
appeal under Section 19 of the Act, can also
encompass the incidental or inextricably connected
directions.
V. If the High Court, for whatsoever reason,
decides an issue or makes any direction, relating to
the merits of the dispute between the parties, in a
contempt proceedings, the aggrieved person is not
without remedy. Such an order is open to challenge
in an intra-court appeal (if the order was of a
learned Single Judge and there is a provision for an
intra-court appeal), or by seeking special leave to
appeal under Article 136 of the Constitution of
India (in other cases).
The first point is answered accordingly.”
14. Following the decision in Midnapore Peoples’ Coop. Bank
Ltd., it is a settled principle that an appeal under Section 19 lies
only against an order imposing punishment for contempt.
15. In the order dated 2 June 2023, it has been held that the
respondents before the Court, namely, the appellants to these
Signature Not Verified proceedings are guilty of contempt. A Letters Patent Appeal would
Digitally Signed By:AJIT not be maintainable under Section 19, if the matter were to only
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rest there. However, from the extracts which have been reproduced
in the earlier part of this judgment, it is evident that the Single
Judge:
(i) Recorded the submission of the respondent herein
(as set out in the written submissions dated 2 March 2023)
that even if the implementation of the minor penalty was to
take effect from 16 October 2018, he would be entitled to
all promotions till the rank of IG from 2021 till the date of
his retirement on 31 March 2023; and
(ii) Held that there was willful disobedience of the
directions issued by the Division Bench on 24 December
2019 with respect to pay fixation, seniority and all other
consequential benefits including promotion.
16. The Single Judge, after recording the submissions as
adverted to above, entered a specific finding in paragraph 39 that
“this court is therefore, of the opinion that there is willful
disobedience” (emphasis supplied). The above finding follows
immediately upon the previous paragraph of the order which
records the contention of the respondent herein that he was entitled
to promotion to the rank of IG, in any event with effect from 2021.
17. Bearing in mind the above finding, the Single Judge gave
an opportunity to the appellants “to issue a fresh order granting
promotion to the petitioner to the rank of IG” to bring him at par
with his immediate junior. Reading the entirety of the order of the
Single Judge, it is clear that besides holding that the appellants
(who we the respondents before the Single Judge) were guilty of
contempt of court, there is a crystallized finding that the
respondent herein was entitled to promotion as IG, in any event
with effect from 2021.
18. The Division Bench has lost sight of this aspect. The
Division Bench, in paragraph 52, noted the submission of the
respondent that the judgment of the Single Judge should not be
construed as crystallizing any right in favour of the respondent and
should only be confined to the question as to whether the
appellants herein had committed a willful disobedience of the order
of the Division Bench dated 24 December 2019. The Division
Bench accepted this submission and observed that “in view of our
understanding of the impugned judgment, as noted above, the
learned Single Judge has not decided any dispute regarding the
rights and obligations of the parties” other than adjudicating on the
issue of contempt. The judgment of the Division Bench lost sight
of the fact that whether the appeal was maintainable would have to
be construed on a plain reading of the judgment of the Single
Signature Not Verified Judge. Two aspects were covered by the judgment of the Single
Digitally Signed By:AJIT Judge:
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Firstly, a finding that the appellants were guilty of
contempt of the order dated 24 December 2019; andSecondly, that the respondent was entitled to promotion to
the rank of IG.
The first aspect is not amenable to an appeal under Section 19 at
the present stage. The finding that the respondent was entitled to
promotion to the rank of IG would be amenable to an appeal in
terms of the law laid down by this Court in Midnapore Peoples’
Coop. Bank Ltd. (supra), more particularly in paragraph 11(V)
which has been extracted above.
19. For the above reasons, we set aside the impugned judgment
and order of the Division Bench dated 10 May 2024 and restore
Letters Patent Appeal 157 of 2024 in Contempt Case No 198 of
2020 together with the associated interlocutory applications to the
file of the Division Bench for consideration on merits in terms of
the above directions.
23. It is thus that the present LPA is back before us, as the
successors of the earlier Division Bench.
24. We have heard Mr Ruchir Mishra, learned Counsel for the
appellants, and Mr Sanjoy Ghose, learned Senior Counsel for the
respondent.
25. The judgment of the Supreme Court leaves us with a limited
remit. We cannot examine the correctness of the finding of the
learned Single Judge, in the impugned judgment dated 2 June 2023,
that the appellants are guilty of contempt, as no order on sentence has
been passed thereafter. We are, therefore, only concerned with the
finding of the learned Single Judge that the respondent was entitled to
promotion as IG.
26.
Signature Not Verified The predecessor Division Bench has already observed, in para
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40 of the order dated 10 May 2024, that the learned Single Judge
could not have returned any substantive findings regarding the
entitlement of the respondent to promotion as IG in a contempt
petition. The Division Bench was, however, of the view that the
learned Single Judge had not, in fact, returned any such finding in the
impugned order dated 2 June 2023. The Supreme Court has, in its
judgment dated 29 July 2024, reversed this finding and held that the
learned Single Judge has, in fact, in the impugned order dated 2 June
2023, returned a positive finding that the respondent was entitled to
be promoted as IG. As held by the Division Bench in the order dated
10 May 2024, the learned Single Judge obviously could not have done
so.
27. This appeal must, therefore, succeed.
28. As one may say, Q.E.D.12
29. Though the predecessor Division Bench has already, in para 40
of the order dated 10 May 2024, observed that the learned Single
Judge could not have found the respondent entitled to promotion as IG
while adjudicating a contempt petition, we may note that this position
is, by now, fossilized in the law.
30. A finding that the respondent was entitled to promotion as IG,
followed by a direction to the respondent to act accordingly and grant
of time to do so, could not have been returned by the Single Judge
while adjudicating the contempt petition. A court seized of contempt
Signature Not Verified
12 Quod erat demonstrandum, meaning “what was to be demonstrated” and signifying that the demonstration,
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proceedings can find the alleged contemnor guilty, or not guilty, of
having committed contempt, and proceed accordingly. It cannot issue
substantive directions, or grant substantive relief to the applicants
before it. Any such directions would be manifestly in exercise of
jurisdiction. In V.M. Manohar Prasad v N. Ratnam Raju13, the
proposition was thus stated:
“7. … Secondly, it is submitted that the Contempt Court had no
jurisdiction to issue any direction providing any substantive relief
to the petitioners moving the contempt petition. In support of this
contention reliance has been placed upon decisions of this Court
in Jhareswar Prasad Paul v Tarak Nath Ganguly14 and Notified
Area Council v Bishnu C. Bhoi15. There is no doubt about the
position under the law that in contempt proceedings no further
directions could be issued by the court. In case it is found that
there is violation of the order passed by the court the court may
punish the contemnor otherwise notice of contempt is to be
discharged. An order passed in the contempt petition, could not be
a supplemental order to the main order granting relief.”
(Emphasis supplied)
31. It requires to be remembered that a contempt proceeding is
a lis between the court and the alleged contemnor. The contempt
petitioner is a mere informer. He gets no substantive relief by moving
for contempt; except, perhaps, the spiritual satisfaction in seeing his
perceived oppressor brought to book. Contempt is an affront on the
authority of the Court, and if anyone can justifiably take umbrage at it,
it is the Court alone, and no one else.
32. This position stands underscored in the following passage
from D.N. Taneja v Bhajan Lal16:
13 (2004) 13 SCC 610
14 (2002) 5 SCC 352
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15 (2001) 10 SCC 636
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16 (1988) 3 SCC 26
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“12. …A contempt is a matter between the court and the alleged
contemnor. Any person who moves the machinery of the court for
contempt only brings to the notice of the court certain facts
constituting contempt of court. After furnishing such information
he may still assist the court, but it must always be borne in mind
that in a contempt proceeding there are only two parties, namely,
the court and the contemnor It may be one of the reasons which
weighed with the legislature in not conferring any right of appeal
on the petitioner for contempt. The aggrieved party under Section
19(1) can only be the contemnor who has been punished for
contempt of court.”
33. Contempt is not a means to secure execution. In R.N.
Dey v Bhagyabati Pramanik17, it was held:
“7. We may reiterate that the weapon of contempt is not to be used
in abundance or misused. Normally, it cannot be used for
execution of the decree or implementation of an order for which
alternative remedy in law is provided for. Discretion given to the
court is to be exercised for maintenance of the court’s dignity and
majesty of law. Further, an aggrieved party has no right to insist
that the court should exercise such jurisdiction as contempt is
between a contemner and the court. It is true that in the present
case, the High Court has kept the matter pending and has ordered
that it should be heard along with the first appeal. But, at the same
time, it is to be noticed that under the coercion of contempt
proceeding, appellants cannot be directed to pay the compensation
amount which they are disputing by asserting that claimants were
not the owners of the property in question and that decree was
obtained by suppressing the material fact and by fraud.”
34. In Rama Narang v Ramesh Narang18, the Supreme Court has
further held that a contempt petition is not an execution proceeding.
35. The learned Single Judge has, at various points in the impugned
judgment, regarded the judgment, dated 24 December 2019, as
inexorably requiring the appellants to promote the respondent as IG.
We regret our inability to agree. No categorical direction, to promote
the respondent as IG, plainly, is to be found in the judgment dated 24
Signature Not Verified
17 (2000) 4 SCC 400
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18 (2021) 15 SCC 338
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December 2019. The only clear direction is to substitute the
punishment of removal from service, imposed on the respondent, with
the punishment of reduction to a lower stage in the scale of pay by one
stage for a period not exceeding 3 years, without cumulative effect
and adversely affecting pension, and to reinstate the respondent as
Assistant Commandant retrospectively from 10 July 1995, when he
was removed from service.
36. The further direction for consequential benefits, including
promotions, cannot be regarded as guaranteeing, to the respondent all
further promotions, including promotion to the grade of IG. At the
highest, it can only be regarded as entitling the respondent to
consideration for promotion to higher grades, including IG, if he is
eligible and entitled to such promotion in law. The learned Single
Judge was not, in our respectful view, correct in her finding that the
order dated 24 December 2019 unequivocally directed the appellants
to promote the respondent as IG.
37. The issue of whether the respondent was, or was not, entitled to
be promoted as IG from the date when his junior was so promoted,
would depend on several factors. The appellants had sought to
contend, in this regard, that the IG did not possess the actual
qualifying service for such promotion, which was 5 years residency
period in the rank of Deputy Commandant with 2 years mandatory
field service and completion of pre-promotional course. That the
respondent did not, in fact, possess the said experience, is not in
dispute. The issue of whether, despite this, he was entitled to
promotion as IG, was, in our view, not an aspect which could have
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been examined by the learned Single Judge while adjudicating the
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contempt petition especially, at the cost of reiteration, as the judgment
dated 24 December 2019 did not contain any specific direction to
promote the respondent as IG. It constituted a substantive and
separate cause of action, which the respondent would necessarily have
to agitate separately.
38. We may also observe, in this context, that it may also arise for
consideration, in such an eventuality, as to whether such a dispute
could be decided without impleading Mr R.D.S. Sahi, allegedly the
“immediate junior” of the respondent, as a party, as one of the
possible fallouts of such a decision would be that the respondent
would become senior to Mr Sahi. This affords yet another reason why
the learned Single Judge could not, as she has, pronounced on the
entitlement of the respondent to promotion as IG with effect from the
date of grant of such promotion to Mr Sahi, while adjudicating on the
Contempt Petition filed by the respondent.
39. Resultantly, in our opinion, the Single Judge could not, while
adjudicating Cont Cas (C) 198/2020, have pronounced on the
entitlement of the respondent to promotion as IG, much less direct
such promotion to be granted to the respondent. To that extent,
therefore, the impugned judgment stands quashed and set aside.
40. Mr. Mishra, learned Counsel for the petitioner submits that the
finding of the Single Judge qua contempt is predicated on the
respondent’s entitlement to promotion as IG and relies, for this
purpose, on para 16 of the judgment of the Supreme Court. Mr Ghosh
contests this submission. As already noted, we cannot return any
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finding in that regard as the Supreme Court has clarified that the
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findings of the learned Single Judge on the aspect of contempt are not
amenable to appeal in LPA.
41. The appeal stands allowed to the aforesaid extent.
42. Pending miscellaneous applications, if any, stand disposed of.
C. HARI SHANKAR, J.
ANOOP KUMAR MENDIRATTA, J.
DECEMBER 16, 2024/ar
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