i) Whether the second respondent is guilty of willful and deliberate disobedience to the order dated 22-12-2015 passed by this Court in W.P.M.P.No.53654 of 2015 in W.P.No.41555 of 2015 in terms of Section 2(b) of the Contempt of Courts Act, 1971? and ii) Whether the disposal of W.P.No.41555 of 2015 by a final order dated 24-6-2016 recording that miscellaneous petitions, pending if any, stand disposed of as infructuous would have any impact upon the interim order dated 22-12-2015 in relation to which these contempt proceedings were initiated?= In fact, if an order of suspension passed by an employer is suspended by a Court by way of an ex parte interim order, the enforcement of the said ex parte interim order would actually become irreversible. This is for the reason that if the employee is reinstated pursuant to the interim order, he can at the most be placed again under suspension, after the interim order is vacated or the writ petition is dismissed. But the salary paid to the employee during the interregnum, cannot be recovered, as the employee would have worked and earned his salary. Therefore, in a way, the enforcement of an ex parte interim stay/suspension of an order of suspension, is prone to result in irreversible consequences and the learned Senior Judge may not be right in holding that the decision in Yaqoob Khan may hold good only in cases where they become irreversible. Another important aspect is that if an interim order had attained finality then the question of hearing the vacate stay petition does not arise. Therefore, the distinction sought to be made to the decision in Yaqoob Khan cannot be accepted. Hence, on the first question referred to me for consideration, I am of the considered view that the 2nd respondent cannot be held to be guilty of wilful disobedience of the order dated 22.12.2015.; whether the disposal of the main writ petition by a final order, recording an opinion that miscellaneous petitions will stand disposed of as infructuous, would have any impact upon the interim order dated 22.12.2015 in relation to which these contempt proceedings arise.= Therefore, I am of the considered view that the last paragraph of the order of the Division Bench dated 24.06.2016 holding that the Miscellaneous Petitions pending if any, stand disposed of as infructuous, is a clear indication that the petitioner was not entitled to anything more than what was incorporated in the final order passed in the writ petition. The manner in which miscellaneous petitions were closed while disposing of the writ petition, certainly had the effect of annihilating the ex parte interim order dated 22.12.2015 and the benefits arising out of the same. Hence the 2nd respondent cannot be held guilty of wilful disobedience of the interim order dated 22.12.2015.
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
CONTEMPT CASE No.150 of 2016
01-09-2017
G. Naganna, S/o. Savaranna Occ: Sub Divisional Police Officer (under suspension) Gudivada, Krishna District, R/o 2-2-12/B/1
Durgabai Deshmukh Colony, Baghamberpet,Hyderabad 500 013. Petitioner
1.Dr. Manmohan Singh, IAS, S/o. not known, Occ: Principal Secretary, Home Department, Sate of Andhra Pradesh, Secretariat B
Counsel for the Petitioner: Mr. T. Koteswara Rao
Counsel for Respondents 1&2: Advocate General
<Gist:
>Head Note:
? Cases referred:
1.(2014) 3 MLJ 1
2.(1992) 4 SCC 167
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
CONTEMPT CASE NO.150 OF 2016
JUDGMENT:
This contempt petition stands posted before me on
a reference made by a Division Bench of this Court, after the two learned
Judges constituting the Division Bench found themselves unable to
agree with the conclusions reached by each other. By an order dated 16-
6-2017, the Division Bench has referred the following points for
determination by
a 3rd Judge, in terms of Clause 36 of the Letters Patent:
i) Whether the second respondent is guilty of willful
and deliberate disobedience to the order dated 22-12-2015
passed by this Court in W.P.M.P.No.53654 of 2015 in
W.P.No.41555 of 2015 in terms of Section 2(b) of the
Contempt of Courts Act, 1971? and
ii) Whether the disposal of W.P.No.41555 of 2015
by a final order dated 24-6-2016 recording that
miscellaneous petitions, pending if any, stand disposed of
as infructuous would have any impact upon the interim
order dated 22-12-2015 in relation to which these contempt
proceedings were initiated?
2. I have heard Mr. T.Koteswara Rao, learned counsel appearing
for the petitioner and the learned Advocate General for the State of
Andhra Pradesh.
3. A brief background of facts may be necessary for answering the
points referred to me for an opinion. They are as follows:
(i) The petitioner who was working as a Sub Divisional Police
Officer was served with two orders, both dated 07-10-2014, transferring
him to a different place and placing him under suspension.
(ii) The petitioner challenged the order of suspension before the
A.P. Administrative Tribunal in O.A.No.6108 of 2014. While ordering
notice in the application, the Tribunal granted an interim stay of the order
of suspension.
(iii) When the State filed an application for vacating the interim
order and the petitioner filed a contempt application alleging wilful
disobedience of the order of interim stay, the Tribunal thought fit to take
up the original application itself for disposal. Accordingly, by an order
dated 01-10-2015, the Tribunal disposed of the said application merely
with a direction to the respondents to review the suspension of the
applicant and to pass appropriate orders for his reinstatement within six
weeks.
(iv) Not satisfied with the said order of the Tribunal, the petitioner
filed a writ petition in W.P.No.41555 of 2015 on the file of this Court,
challenging merely the order of the Tribunal. But along with the writ
petition, the petitioner filed a miscellaneous application seeking an
interim suspension not only of the order of the Tribunal but also of the
order of suspension and further seeking a direction to the respondents to
reinstate him into service.
(v) While ordering notice in the writ petition, a Division Bench of
this Court passed an ex parte interim order on 22-12-2015 to the following
effect:
Interim suspension as prayer for.
(vi) Contending that the interim order passed on 22-12-2015 was
not obeyed, the petitioner filed the above contempt petition in C.C.No.150
of 2016. The contempt petition appears to have been filed on 25-01-2016
as seen from the rubber stamp on the docket sheet.
(vii) The State came up with a petition for vacation of the interim
order in W.V.M.P.No.452 of 2016. It appears that the vacate stay petition
was filed on 08-02-2016.
(viii) Though an endeavour is said to have been made, to have the
stay petition, the vacate stay petition as well as the contempt petition
heard together, it was not successful. Therefore, the writ petition, the stay
petition and the vacate stay petition proceeded on one track and the
contempt petition proceeded on a different track.
(ix) Eventually, the main writ petition itself was disposed of by a
final order dated 24-6-2016, on the basis of the submission made by the
learned Advocate General that the suspension of the petitioner will be
revoked, on the understanding that the petitioner will participate in the
enquiry.
(x) Pursuant to the disposal of the writ petition on 24-6-2016 in the
manner as aforesaid, on the basis of a consensus reached between the
parties, the petitioner was also reinstated on 27-6-2016.
(xi) Nevertheless, the above contempt was pursued by the
petitioner on the ground that the ex parte interim order granted
22.12.2015 was not obeyed and the pay and allowances for the period
from 22-12-2015 till the date of reinstatement, namely, 27-6-2016 were not
paid.
(xii) The above contempt petition was heard by two Honble
Judges, one of whom namely Sri Justice U.Durga Prasad Rao was
actually a party to the ex parte interim order passed on 22-12-2015.
(xiii) While the Senior Judge constituting the Bench, who was not
a party to the ex parte interim order which led to the above contempt case,
held the 2nd respondent guilty of contumacious conduct, Sri Justice
U.Durga Prasad Rao who was a party to the ex parte interim order held
the respondents not guilty of contempt. In view of such divergence of
opinion, the matter has been referred to me under Clause 36 of the
Letters Patent, on the questions which I have extracted earlier.
4. Since specific questions have been referred to me by the
Division Bench for my opinion, it is enough if I confine the discussion to
the questions referred.
Question No.1:
5. The first question referred for my opinion is whether the 2nd
respondent is guilty of wilful disobedience of the order dated 22.12.2015
in terms of Section 2(b) of the Contempt of Courts Act, 1971.
6. Section 2(b) of the Contempt of Courts Act, 1971 defines civil
contempt to mean wilful disobedience to any judgement, decree,
direction, order, writ or other process of Court or wilful breach of an
undertaking given to a Court. The wilful disobedience alleged against the
2nd respondent is the failure to reinstate the petitioner into service
pursuant to the interim order passed on 22.12.2015. Since the interim
order cannot be seen in isolation, it is necessary to see (1) the relief
prayed for in the writ petition; (2) the relief sought in the miscellaneous
petition; and (3) the interim order passed on 22.12.2015.
7. As I have pointed out earlier, the relief sought in the writ petition
was only to set aside the order of the Tribunal. The prayer in
W.P.No.41555 of 2015 reads as follows:
For the reasons stated in the accompanying affidavit, it is
hereby prayed that this Honble Court may be pleased to
issue any writ, order or direction more particularly in the
nature of CERTIORARI calling the records in connection
with the order dated 01.10.2015 in the O.A.No.6108 of
2014 on the file of the Honble Andhra Pradesh
Administrative Tribunal at Hyderabad, after examining the
same declare the said orders are not sustainable in law as
the Honble Tribunal gravely erred in disposing the OA
without considering the material averments of the petitioner
and also disposed the OA without giving reasons in support
of their decision and by setting aside the same, allow the
OA as prayed for and to pass such other order or orders as
this Honble Court may deems fit just and proper in the
circumstances of the case.
8. Since the only prayer made in the main writ petition is to quash
the order of the Tribunal, let me see what the order of the Tribunal was.
The operative portion of the order of the Tribunal reads as follows:
Keeping in view the grave allegations against the applicant
and keeping in view the fact that the impugned orders of
suspension were issued on 07.10.2014, the respondents
are directed to review the suspension of the applicant and
pass appropriate orders for his reinstatement, within a
period of six weeks from the date of receipt of a copy of
this order.
9. Therefore, even if we assume that the writ petition would have
been allowed in favour of the petitioner herein, the same would have
resulted only in the aforesaid order of the Tribunal being set aside and
the Original Application being allowed. The allowing of the Original
Application would have meant the setting aside of the order of
suspension. Therefore, till the writ petition was allowed as prayed for and
the order of the Tribunal set aside and the Original Application being
allowed as a consequence, the right of the petitioner to seek
reinstatement could not be said to have fructified in absolute terms.
10. Having seen the prayer made in the main writ petition, let me
now take a look at the interim relief sought in the W.P.M.P.No.53654 of
2015 in W.P.No.41555 of 2015. The prayer made in this miscellaneous
petition is as follows:
Petition under Section 151 of C.P.C. praying that in the
circumstances stated in the affidavit filed in the W.P., the
High Court may be pleased to suspend the orders of the
Honble Andhra Pradesh Administrative Tribunal dated
01.10.2015 in the O.A.No.6108 of 2014 along with
suspension orders Rc.No.384/02/2014, dated 07.10.2014
impugned in the O.A.No.6108 of 2014 with a direction to
the respondents to reinstate the petitioner immediately in
the post which he was holding prior to the issuance of
suspension orders with all consequential benefits pending
disposal of W.P.No.41555 of 2015 on the file of the High
Court.
11. As rightly pointed out by the learned Advocate General, the
prayer in W.P.M.P.No.53654 of 2015 comprises of three parts, viz., (1) to
suspend the final order of the Tribunal dated 01.10.2015; (2) to suspend
the order of suspension dated 07.10.2015; and (3) to direct the
respondents to reinstate the petitioner immediately in the post which he
was holding.
12. Despite the fact that there were three components to the interim
relief sought by the petitioner, the only order passed ex parte on
22.12.2015 was interim suspension as prayed for. There was no interim
direction to reinstate. In a contempt petition a person cannot be heard to
contend that the respondents are obliged to understand the true spirit of
the interim order by going beyond the language used in the petition itself.
If an interim order gives scope for two different views or at least a scope
for some degree of lack of clarity, it is not open to the Court to invoke the
contempt jurisdiction.
13. As I have indicated in the timeline of events, the interim order
was granted by this Court on 22.12.2015, the Contempt petition was filed
on 25.01.2016 and a vacate stay petition was filed on 08.02.2016. In all
fairness, the vacate stay petition should have been taken up first before
deciding the contempt. No party to a proceeding can be held to ransom
with ex parte interim orders, especially when an application for vacating
the interim order was already on file.
14. As a matter of fact, clause (3) of Article 226 of the Constitution
imposes an obligation upon the High Court to dispose of an application
for vacation of an interim order within two weeks failing which, the interim
order will stand automatically vacated. Clause (3) of Article 226 reads as
follows:
Where any party against whom an interim order, whether
by way of injunction or stay or in any other manner, is
made on, or in any proceedings relating to, a petition under
clause (1), without
(a) furnishing to such party copies of such petition and all
documents in support of the plea for such interim order;
and
(b) giving such party an opportunity of being heard,
Makes an application to the High Court for the vacation of
such order and furnishes a copy of such application to the
party in whose favour such order has been made or the
counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on
which it is received or from the date on which the copy of
such application is so furnished, whichever is later, or
where the High Court is closed on the last day of that
period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is not so
disposed of, the interim order shall, on the expiry of that
period, or, as the case may be, the expiry of the said next
day, stand vacated.
15. Though the High Courts of Kerala, Allahabad and Gujarat have
taken the view that Article 226 (3) is mandatory and I have had an
occasion to hold it only as directory, in a decision reported in Dr. T.
Gnanasambanthan v. Board of Governors , the principle behind Article
226 (3) has to be kept in mind while dealing with a contempt petition. To
tell the respondent in a writ petition that his vacate stay petition will not be
heard unless and until the contempt is purged, would tantamount to
wielding a stick beyond the permissible limits.
16. The learned Advocate General rightly relied upon the decision
of the Supreme Court in State of J & K v. Mohd. Yaqoob Khan ,
wherein the Supreme Court held that the High Court should have first
taken up the stay matter without any threat to the respondents of being
punished for contempt. The learned Judge, who held the 2nd respondent
guilty of contumacious conduct, distinguished the decision in Mohd
Yaqoob Khan on the ground that the reinstatement of the petitioner
pursuant to the interim order dated 22.12.2015 would not have become
either final or irreversible. But I do not think that Yaqoob Khan allows of
such a distinction.
17. In fact, if an order of suspension passed by an employer is
suspended by a Court by way of an ex parte interim order, the
enforcement of the said ex parte interim order would actually become
irreversible. This is for the reason that if the employee is reinstated
pursuant to the interim order, he can at the most be placed again under
suspension, after the interim order is vacated or the writ petition is
dismissed. But the salary paid to the employee during the interregnum,
cannot be recovered, as the employee would have worked and earned
his salary. Therefore, in a way, the enforcement of an ex parte interim
stay/suspension of an order of suspension, is prone to result in
irreversible consequences and the learned Senior Judge may not be right
in holding that the decision in Yaqoob Khan may hold good only in cases
where they become irreversible.
18. Another important aspect is that if an interim order had attained
finality then the question of hearing the vacate stay petition does not
arise. Therefore, the distinction sought to be made to the decision in
Yaqoob Khan cannot be accepted. Hence, on the first question referred to
me for consideration, I am of the considered view that the 2nd respondent
cannot be held to be guilty of wilful disobedience of the order dated
22.12.2015.
Question No.2:
19. The second question that was referred to me for opinion is
whether the disposal of the main writ petition by a final order, recording
an opinion that miscellaneous petitions will stand disposed of as
infructuous, would have any impact upon the interim order dated
22.12.2015 in relation to which these contempt proceedings arise.
20. In order to find an answer to this question, it is necessary to
take note of the manner in which the main writ petition was disposed of.
The main writ petition W.P.No.41555 of 2015 was disposed of by a final
order dated 24.06.2016, along with another writ petition arising out of the
dismissal of a challenge to the charge memo. The common order dated
24.06.2016 passed in both the writ petitions reads as follows:
"These two writ petitions arise out of Common
Order, dated 01.10.2015, in O.A.Nos.6108 of 2014 and
1685 of 2015, on the file of the Andhra Pradesh
Administrative Tribunal, Hyderabad (for short the Tribunal).
Having regard to the manner in which the Writ
Petitions are proposed to be disposed of, it is not necessary
to refer to the facts in detail. However, it will suffice to note
that the above mentioned O.As were filed by the writ
petitioner feeling aggrieved by the issuance of charge
memo and the order of suspension in pursuance of the
disciplinary proceedings initiated against him. While
dismissing O.A.No.1685 of 2015, filed questioning the
charge memo, the Tribunal has, however, issued direction
to the respondents in O.A.No.6108 of 2014, filed
questioning the suspension order, to pass appropriate
orders for reinstatement of the petitioner.
After arguing the case at length, the learned
Advocate General for the State of Andhra Pradesh fairly
submitted that he ill advise the respondents to revoke the
suspension order immediately and post the petitioner at
appropriate place of their choice.
Mr. T. Koteswara Rao, leanred Counsel for the
petitioner, submitted that having regard to the submission
made by the learned Advocate General the suspension
order of his client will be immediately revoked, his client will
participate in the enquiry as per the impugned charge
memo.
Having regard to the above consensus arrived at
between the parties the necessity of disposing of the Writ
Petitions on merits is obviated.
The Writ Petitions are, accordingly, disposed of by
placing on record the submissions of the learned Advocate
General as well as the learned Counsel for the petitioner.
21. A perusal of the aforesaid order would show that the writ
petition arising out of the order of suspension, was not decided on merits,
but decided on a concession given by the learned Advocate General,
which was accepted by the learned counsel for the petitioner. In the
penultimate paragraph of the order extracted above, the Bench has
recorded the consensus arrived at between the parties.
22. The normal rule is that an interim order would merge with a
final order. If an interim order is granted and the writ petition is allowed,
the interim order becomes absolute or assumes larger connotations, as
the case may be. If an interim order is granted and the writ petition is
eventually dismissed, the interim order gets vacated. In cases where an
interim order is enforced by invoking the contempt jurisdiction and the writ
petition is eventually dismissed, the situation may become irreversible
and the petitioner would have gained an advantage that he did not
deserve. In cases where restitution is possible, the respondents could be
compensated. But in service matters, restitution may not be possible in
the sense that the employee cannot be asked to refund the pay and
allowances received by him, upon the enforcement of the interim order.
Therefore, the Courts may have to be cautious while invoking contempt
jurisdiction in cases where the coercive implementation of ex parte
interim orders would lead to irreversible consequences or consequences
that may confer an unintended benefit upon the petitioner or an undue
hardship to the respondents.
23. As I have pointed out earlier, the writ petition filed by the
petitioner, challenging the order of the tribunal, was not allowed on
merits, setting aside the order of suspension. The final order passed in
the writ petition, was based upon, a consensus reached between the
parties. Once the parties to a litigation have arrived at a consensus at the
time of final hearing of the suit or writ petition, it must be construed as a
normal rule that the benefits arising out of the interim order if any, were
foregone. If the beneficiary of an interim order wanted to retain the
benefit of the interim order even while accepting a compromise, he
should have made it clear. The consensus reached before the Division
Bench at the time of final hearing of W.P.No.41555 of 2015, is final and
conclusive between the parties and unless the petitioner had taken care
to ensure that the final order dated 24.06.2016 ensured the release of pay
and allowances for the period from 22.12.2015 upto 24.06.2016, the
petitioner cannot fall back upon the ex-parte interim order and seek to
derive an extra benefit through the contempt petition over and above
what was agreed by consensus.
24. To allow the contempt petition, thereby enabling the petitioner
to get the pay and allowances for the period from 22.12.2015 upto
24.06.2016 would tantamount to conferring a benefit that goes beyond
the consensus reached at the time of final hearing. Therefore, I am of the
considered view that the last paragraph of the order of the Division Bench
dated 24.06.2016 holding that the Miscellaneous Petitions pending if
any, stand disposed of as infructuous, is a clear indication that the
petitioner was not entitled to anything more than what was incorporated
in the final order passed in the writ petition. The manner in which
miscellaneous petitions were closed while disposing of the writ petition,
certainly had the effect of annihilating the ex parte interim order dated
22.12.2015 and the benefits arising out of the same. Hence the 2nd
respondent cannot be held guilty of wilful disobedience of the interim
order dated 22.12.2015.
25. In fine the questions referred to me by the Division Bench are
answered as follows:
1) The 2nd respondent is not guilty of wilful disobedience of the ex
parte interim order dated 22.12.2015;
2) The final order dated 24.06.2016 passed on consensus in the
writ petition, closing the miscellaneous petitions if any, as infructuous,
had the effect of neutralising the interim order and the benefit arising
therefrom;
26. As a result, the 2nd respondent should be discharged and
accordingly he is discharged.
_________________________
V.RAMASUBRAMANIAN, J.
1st September, 2017.
CONTEMPT CASE No.150 of 2016
01-09-2017
G. Naganna, S/o. Savaranna Occ: Sub Divisional Police Officer (under suspension) Gudivada, Krishna District, R/o 2-2-12/B/1
Durgabai Deshmukh Colony, Baghamberpet,Hyderabad 500 013. Petitioner
1.Dr. Manmohan Singh, IAS, S/o. not known, Occ: Principal Secretary, Home Department, Sate of Andhra Pradesh, Secretariat B
Counsel for the Petitioner: Mr. T. Koteswara Rao
Counsel for Respondents 1&2: Advocate General
<Gist:
>Head Note:
? Cases referred:
1.(2014) 3 MLJ 1
2.(1992) 4 SCC 167
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
CONTEMPT CASE NO.150 OF 2016
JUDGMENT:
This contempt petition stands posted before me on
a reference made by a Division Bench of this Court, after the two learned
Judges constituting the Division Bench found themselves unable to
agree with the conclusions reached by each other. By an order dated 16-
6-2017, the Division Bench has referred the following points for
determination by
a 3rd Judge, in terms of Clause 36 of the Letters Patent:
i) Whether the second respondent is guilty of willful
and deliberate disobedience to the order dated 22-12-2015
passed by this Court in W.P.M.P.No.53654 of 2015 in
W.P.No.41555 of 2015 in terms of Section 2(b) of the
Contempt of Courts Act, 1971? and
ii) Whether the disposal of W.P.No.41555 of 2015
by a final order dated 24-6-2016 recording that
miscellaneous petitions, pending if any, stand disposed of
as infructuous would have any impact upon the interim
order dated 22-12-2015 in relation to which these contempt
proceedings were initiated?
2. I have heard Mr. T.Koteswara Rao, learned counsel appearing
for the petitioner and the learned Advocate General for the State of
Andhra Pradesh.
3. A brief background of facts may be necessary for answering the
points referred to me for an opinion. They are as follows:
(i) The petitioner who was working as a Sub Divisional Police
Officer was served with two orders, both dated 07-10-2014, transferring
him to a different place and placing him under suspension.
(ii) The petitioner challenged the order of suspension before the
A.P. Administrative Tribunal in O.A.No.6108 of 2014. While ordering
notice in the application, the Tribunal granted an interim stay of the order
of suspension.
(iii) When the State filed an application for vacating the interim
order and the petitioner filed a contempt application alleging wilful
disobedience of the order of interim stay, the Tribunal thought fit to take
up the original application itself for disposal. Accordingly, by an order
dated 01-10-2015, the Tribunal disposed of the said application merely
with a direction to the respondents to review the suspension of the
applicant and to pass appropriate orders for his reinstatement within six
weeks.
(iv) Not satisfied with the said order of the Tribunal, the petitioner
filed a writ petition in W.P.No.41555 of 2015 on the file of this Court,
challenging merely the order of the Tribunal. But along with the writ
petition, the petitioner filed a miscellaneous application seeking an
interim suspension not only of the order of the Tribunal but also of the
order of suspension and further seeking a direction to the respondents to
reinstate him into service.
(v) While ordering notice in the writ petition, a Division Bench of
this Court passed an ex parte interim order on 22-12-2015 to the following
effect:
Interim suspension as prayer for.
(vi) Contending that the interim order passed on 22-12-2015 was
not obeyed, the petitioner filed the above contempt petition in C.C.No.150
of 2016. The contempt petition appears to have been filed on 25-01-2016
as seen from the rubber stamp on the docket sheet.
(vii) The State came up with a petition for vacation of the interim
order in W.V.M.P.No.452 of 2016. It appears that the vacate stay petition
was filed on 08-02-2016.
(viii) Though an endeavour is said to have been made, to have the
stay petition, the vacate stay petition as well as the contempt petition
heard together, it was not successful. Therefore, the writ petition, the stay
petition and the vacate stay petition proceeded on one track and the
contempt petition proceeded on a different track.
(ix) Eventually, the main writ petition itself was disposed of by a
final order dated 24-6-2016, on the basis of the submission made by the
learned Advocate General that the suspension of the petitioner will be
revoked, on the understanding that the petitioner will participate in the
enquiry.
(x) Pursuant to the disposal of the writ petition on 24-6-2016 in the
manner as aforesaid, on the basis of a consensus reached between the
parties, the petitioner was also reinstated on 27-6-2016.
(xi) Nevertheless, the above contempt was pursued by the
petitioner on the ground that the ex parte interim order granted
22.12.2015 was not obeyed and the pay and allowances for the period
from 22-12-2015 till the date of reinstatement, namely, 27-6-2016 were not
paid.
(xii) The above contempt petition was heard by two Honble
Judges, one of whom namely Sri Justice U.Durga Prasad Rao was
actually a party to the ex parte interim order passed on 22-12-2015.
(xiii) While the Senior Judge constituting the Bench, who was not
a party to the ex parte interim order which led to the above contempt case,
held the 2nd respondent guilty of contumacious conduct, Sri Justice
U.Durga Prasad Rao who was a party to the ex parte interim order held
the respondents not guilty of contempt. In view of such divergence of
opinion, the matter has been referred to me under Clause 36 of the
Letters Patent, on the questions which I have extracted earlier.
4. Since specific questions have been referred to me by the
Division Bench for my opinion, it is enough if I confine the discussion to
the questions referred.
Question No.1:
5. The first question referred for my opinion is whether the 2nd
respondent is guilty of wilful disobedience of the order dated 22.12.2015
in terms of Section 2(b) of the Contempt of Courts Act, 1971.
6. Section 2(b) of the Contempt of Courts Act, 1971 defines civil
contempt to mean wilful disobedience to any judgement, decree,
direction, order, writ or other process of Court or wilful breach of an
undertaking given to a Court. The wilful disobedience alleged against the
2nd respondent is the failure to reinstate the petitioner into service
pursuant to the interim order passed on 22.12.2015. Since the interim
order cannot be seen in isolation, it is necessary to see (1) the relief
prayed for in the writ petition; (2) the relief sought in the miscellaneous
petition; and (3) the interim order passed on 22.12.2015.
7. As I have pointed out earlier, the relief sought in the writ petition
was only to set aside the order of the Tribunal. The prayer in
W.P.No.41555 of 2015 reads as follows:
For the reasons stated in the accompanying affidavit, it is
hereby prayed that this Honble Court may be pleased to
issue any writ, order or direction more particularly in the
nature of CERTIORARI calling the records in connection
with the order dated 01.10.2015 in the O.A.No.6108 of
2014 on the file of the Honble Andhra Pradesh
Administrative Tribunal at Hyderabad, after examining the
same declare the said orders are not sustainable in law as
the Honble Tribunal gravely erred in disposing the OA
without considering the material averments of the petitioner
and also disposed the OA without giving reasons in support
of their decision and by setting aside the same, allow the
OA as prayed for and to pass such other order or orders as
this Honble Court may deems fit just and proper in the
circumstances of the case.
8. Since the only prayer made in the main writ petition is to quash
the order of the Tribunal, let me see what the order of the Tribunal was.
The operative portion of the order of the Tribunal reads as follows:
Keeping in view the grave allegations against the applicant
and keeping in view the fact that the impugned orders of
suspension were issued on 07.10.2014, the respondents
are directed to review the suspension of the applicant and
pass appropriate orders for his reinstatement, within a
period of six weeks from the date of receipt of a copy of
this order.
9. Therefore, even if we assume that the writ petition would have
been allowed in favour of the petitioner herein, the same would have
resulted only in the aforesaid order of the Tribunal being set aside and
the Original Application being allowed. The allowing of the Original
Application would have meant the setting aside of the order of
suspension. Therefore, till the writ petition was allowed as prayed for and
the order of the Tribunal set aside and the Original Application being
allowed as a consequence, the right of the petitioner to seek
reinstatement could not be said to have fructified in absolute terms.
10. Having seen the prayer made in the main writ petition, let me
now take a look at the interim relief sought in the W.P.M.P.No.53654 of
2015 in W.P.No.41555 of 2015. The prayer made in this miscellaneous
petition is as follows:
Petition under Section 151 of C.P.C. praying that in the
circumstances stated in the affidavit filed in the W.P., the
High Court may be pleased to suspend the orders of the
Honble Andhra Pradesh Administrative Tribunal dated
01.10.2015 in the O.A.No.6108 of 2014 along with
suspension orders Rc.No.384/02/2014, dated 07.10.2014
impugned in the O.A.No.6108 of 2014 with a direction to
the respondents to reinstate the petitioner immediately in
the post which he was holding prior to the issuance of
suspension orders with all consequential benefits pending
disposal of W.P.No.41555 of 2015 on the file of the High
Court.
11. As rightly pointed out by the learned Advocate General, the
prayer in W.P.M.P.No.53654 of 2015 comprises of three parts, viz., (1) to
suspend the final order of the Tribunal dated 01.10.2015; (2) to suspend
the order of suspension dated 07.10.2015; and (3) to direct the
respondents to reinstate the petitioner immediately in the post which he
was holding.
12. Despite the fact that there were three components to the interim
relief sought by the petitioner, the only order passed ex parte on
22.12.2015 was interim suspension as prayed for. There was no interim
direction to reinstate. In a contempt petition a person cannot be heard to
contend that the respondents are obliged to understand the true spirit of
the interim order by going beyond the language used in the petition itself.
If an interim order gives scope for two different views or at least a scope
for some degree of lack of clarity, it is not open to the Court to invoke the
contempt jurisdiction.
13. As I have indicated in the timeline of events, the interim order
was granted by this Court on 22.12.2015, the Contempt petition was filed
on 25.01.2016 and a vacate stay petition was filed on 08.02.2016. In all
fairness, the vacate stay petition should have been taken up first before
deciding the contempt. No party to a proceeding can be held to ransom
with ex parte interim orders, especially when an application for vacating
the interim order was already on file.
14. As a matter of fact, clause (3) of Article 226 of the Constitution
imposes an obligation upon the High Court to dispose of an application
for vacation of an interim order within two weeks failing which, the interim
order will stand automatically vacated. Clause (3) of Article 226 reads as
follows:
Where any party against whom an interim order, whether
by way of injunction or stay or in any other manner, is
made on, or in any proceedings relating to, a petition under
clause (1), without
(a) furnishing to such party copies of such petition and all
documents in support of the plea for such interim order;
and
(b) giving such party an opportunity of being heard,
Makes an application to the High Court for the vacation of
such order and furnishes a copy of such application to the
party in whose favour such order has been made or the
counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on
which it is received or from the date on which the copy of
such application is so furnished, whichever is later, or
where the High Court is closed on the last day of that
period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is not so
disposed of, the interim order shall, on the expiry of that
period, or, as the case may be, the expiry of the said next
day, stand vacated.
15. Though the High Courts of Kerala, Allahabad and Gujarat have
taken the view that Article 226 (3) is mandatory and I have had an
occasion to hold it only as directory, in a decision reported in Dr. T.
Gnanasambanthan v. Board of Governors , the principle behind Article
226 (3) has to be kept in mind while dealing with a contempt petition. To
tell the respondent in a writ petition that his vacate stay petition will not be
heard unless and until the contempt is purged, would tantamount to
wielding a stick beyond the permissible limits.
16. The learned Advocate General rightly relied upon the decision
of the Supreme Court in State of J & K v. Mohd. Yaqoob Khan ,
wherein the Supreme Court held that the High Court should have first
taken up the stay matter without any threat to the respondents of being
punished for contempt. The learned Judge, who held the 2nd respondent
guilty of contumacious conduct, distinguished the decision in Mohd
Yaqoob Khan on the ground that the reinstatement of the petitioner
pursuant to the interim order dated 22.12.2015 would not have become
either final or irreversible. But I do not think that Yaqoob Khan allows of
such a distinction.
17. In fact, if an order of suspension passed by an employer is
suspended by a Court by way of an ex parte interim order, the
enforcement of the said ex parte interim order would actually become
irreversible. This is for the reason that if the employee is reinstated
pursuant to the interim order, he can at the most be placed again under
suspension, after the interim order is vacated or the writ petition is
dismissed. But the salary paid to the employee during the interregnum,
cannot be recovered, as the employee would have worked and earned
his salary. Therefore, in a way, the enforcement of an ex parte interim
stay/suspension of an order of suspension, is prone to result in
irreversible consequences and the learned Senior Judge may not be right
in holding that the decision in Yaqoob Khan may hold good only in cases
where they become irreversible.
18. Another important aspect is that if an interim order had attained
finality then the question of hearing the vacate stay petition does not
arise. Therefore, the distinction sought to be made to the decision in
Yaqoob Khan cannot be accepted. Hence, on the first question referred to
me for consideration, I am of the considered view that the 2nd respondent
cannot be held to be guilty of wilful disobedience of the order dated
22.12.2015.
Question No.2:
19. The second question that was referred to me for opinion is
whether the disposal of the main writ petition by a final order, recording
an opinion that miscellaneous petitions will stand disposed of as
infructuous, would have any impact upon the interim order dated
22.12.2015 in relation to which these contempt proceedings arise.
20. In order to find an answer to this question, it is necessary to
take note of the manner in which the main writ petition was disposed of.
The main writ petition W.P.No.41555 of 2015 was disposed of by a final
order dated 24.06.2016, along with another writ petition arising out of the
dismissal of a challenge to the charge memo. The common order dated
24.06.2016 passed in both the writ petitions reads as follows:
"These two writ petitions arise out of Common
Order, dated 01.10.2015, in O.A.Nos.6108 of 2014 and
1685 of 2015, on the file of the Andhra Pradesh
Administrative Tribunal, Hyderabad (for short the Tribunal).
Having regard to the manner in which the Writ
Petitions are proposed to be disposed of, it is not necessary
to refer to the facts in detail. However, it will suffice to note
that the above mentioned O.As were filed by the writ
petitioner feeling aggrieved by the issuance of charge
memo and the order of suspension in pursuance of the
disciplinary proceedings initiated against him. While
dismissing O.A.No.1685 of 2015, filed questioning the
charge memo, the Tribunal has, however, issued direction
to the respondents in O.A.No.6108 of 2014, filed
questioning the suspension order, to pass appropriate
orders for reinstatement of the petitioner.
After arguing the case at length, the learned
Advocate General for the State of Andhra Pradesh fairly
submitted that he ill advise the respondents to revoke the
suspension order immediately and post the petitioner at
appropriate place of their choice.
Mr. T. Koteswara Rao, leanred Counsel for the
petitioner, submitted that having regard to the submission
made by the learned Advocate General the suspension
order of his client will be immediately revoked, his client will
participate in the enquiry as per the impugned charge
memo.
Having regard to the above consensus arrived at
between the parties the necessity of disposing of the Writ
Petitions on merits is obviated.
The Writ Petitions are, accordingly, disposed of by
placing on record the submissions of the learned Advocate
General as well as the learned Counsel for the petitioner.
21. A perusal of the aforesaid order would show that the writ
petition arising out of the order of suspension, was not decided on merits,
but decided on a concession given by the learned Advocate General,
which was accepted by the learned counsel for the petitioner. In the
penultimate paragraph of the order extracted above, the Bench has
recorded the consensus arrived at between the parties.
22. The normal rule is that an interim order would merge with a
final order. If an interim order is granted and the writ petition is allowed,
the interim order becomes absolute or assumes larger connotations, as
the case may be. If an interim order is granted and the writ petition is
eventually dismissed, the interim order gets vacated. In cases where an
interim order is enforced by invoking the contempt jurisdiction and the writ
petition is eventually dismissed, the situation may become irreversible
and the petitioner would have gained an advantage that he did not
deserve. In cases where restitution is possible, the respondents could be
compensated. But in service matters, restitution may not be possible in
the sense that the employee cannot be asked to refund the pay and
allowances received by him, upon the enforcement of the interim order.
Therefore, the Courts may have to be cautious while invoking contempt
jurisdiction in cases where the coercive implementation of ex parte
interim orders would lead to irreversible consequences or consequences
that may confer an unintended benefit upon the petitioner or an undue
hardship to the respondents.
23. As I have pointed out earlier, the writ petition filed by the
petitioner, challenging the order of the tribunal, was not allowed on
merits, setting aside the order of suspension. The final order passed in
the writ petition, was based upon, a consensus reached between the
parties. Once the parties to a litigation have arrived at a consensus at the
time of final hearing of the suit or writ petition, it must be construed as a
normal rule that the benefits arising out of the interim order if any, were
foregone. If the beneficiary of an interim order wanted to retain the
benefit of the interim order even while accepting a compromise, he
should have made it clear. The consensus reached before the Division
Bench at the time of final hearing of W.P.No.41555 of 2015, is final and
conclusive between the parties and unless the petitioner had taken care
to ensure that the final order dated 24.06.2016 ensured the release of pay
and allowances for the period from 22.12.2015 upto 24.06.2016, the
petitioner cannot fall back upon the ex-parte interim order and seek to
derive an extra benefit through the contempt petition over and above
what was agreed by consensus.
24. To allow the contempt petition, thereby enabling the petitioner
to get the pay and allowances for the period from 22.12.2015 upto
24.06.2016 would tantamount to conferring a benefit that goes beyond
the consensus reached at the time of final hearing. Therefore, I am of the
considered view that the last paragraph of the order of the Division Bench
dated 24.06.2016 holding that the Miscellaneous Petitions pending if
any, stand disposed of as infructuous, is a clear indication that the
petitioner was not entitled to anything more than what was incorporated
in the final order passed in the writ petition. The manner in which
miscellaneous petitions were closed while disposing of the writ petition,
certainly had the effect of annihilating the ex parte interim order dated
22.12.2015 and the benefits arising out of the same. Hence the 2nd
respondent cannot be held guilty of wilful disobedience of the interim
order dated 22.12.2015.
25. In fine the questions referred to me by the Division Bench are
answered as follows:
1) The 2nd respondent is not guilty of wilful disobedience of the ex
parte interim order dated 22.12.2015;
2) The final order dated 24.06.2016 passed on consensus in the
writ petition, closing the miscellaneous petitions if any, as infructuous,
had the effect of neutralising the interim order and the benefit arising
therefrom;
26. As a result, the 2nd respondent should be discharged and
accordingly he is discharged.
_________________________
V.RAMASUBRAMANIAN, J.
1st September, 2017.
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