Sudhir Kumar Sinha Vs. State of Jharkhand and ors. - Court Judgment

Excerpt:

.....of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the..........but if it is so, the respondents were at liberty to file an appeal against the order sought to be complied and further could be at liberty to take action against him as per the rules, but straightway payment of arrears of salary for the period during which he is alleged to be on unauthorized leave could not have been allowed to be stopped by die respondents-contemnors of die order of the court, making a convenient interpretation of the same.5. assuming for a moment that the respondents were legally entitled to take action against the petitioner and they sincerely thought that the payment towards the arrears of salary was not legally justified, this objection could have been raised by the g.p.-i when the order was passed on 7.9.2007 so that the direction already issued in the order dated 7.9.2007 could have been obviated. but no argument was advanced by the state on the said date and direction was allowed to be issued to pay the dues of salary to the petitioner.6. hence, at the stage while entertaining second petition or contempt, the argument advanced, which is practically in the nature of an appeal against the order sought to be corn-plied, cannot be allowed to be raised at.....

Judgment:

ORDER

1. This is a petition for contempt, which has been filed for the second time alleging that the order dated 16.2.2006 passed by the Division Bench in L.P.A No. 536/2005 has not been complied in letter and spirit, as the petitioner although has been paid his current salary, he lias not been paid his arrears of salary in spite of subsequent direction issued by this Court on 7.9.2007 in Cont. (C) Case No. 615 of 2007, which categorically directed as follows:.The respondents are directed to pay the dues of the salary to the petitioner within four weeks from the date of receipt/production of a copy of this order.

2. It was submitted by learned Counsel for the petitioner that although current salary has been paid to the petitioner, the dues accruing towards arrears of salary has not been paid to him.

3. Learned G.P.-I, Mr. Modi, has strongly refuted the contention of the counsel for the petitioner and submitted that the petitioner has duly been paid his current salary after he joined his transferred post, but his arrears of salary for the period during which he remained absent without any information cannot be paid to him.

It is, no doubt, true that if an order had been passed against the petitioner and in favour of the State restraining payment of arrears of salary for the past or for the present, no case for contempt could have been made out. But the order dated 7.9.2007 clearly indicates that a direction had been issued 'to pay the dues of the salary to the petitioner. Although it is asserted by the counsel for the respondent-contemnors/G.P.-I that the expression, 'dues' ought to be construed as current salary, we are not prepared to accept this assertion as the petitioner on 7.9.2007 was already drawing his current salary and thereafter he filed petition for contempt and direction was issued to pay him the dues of salary.

4. In all fairness, the respondent-contemnors ought to have honoured the order in letter and spirit In the light of the totality of the. circumstance under which the order was passed. But Instead of complying with the order, it has now been submitted that the petitioner was on unauthorized absence and committed dereliction of duty. But if it is so, the respondents were at liberty to file an appeal against the order sought to be complied and further could be at liberty to take action against him as per the rules, but straightway payment of arrears of salary for the period during which he is alleged to be on unauthorized leave could not have been allowed to be stopped by die respondents-contemnors of die order of the Court, making a convenient interpretation of the same.

5. Assuming for a moment that the respondents were legally entitled to take action against the petitioner and they sincerely thought that the payment towards the arrears of salary was not legally justified, this objection could have been raised by the G.P.-I when the order was passed on 7.9.2007 so that the direction already issued in the order dated 7.9.2007 could have been obviated. But no argument was advanced by the State on the said date and direction was allowed to be issued to pay the dues of salary to the petitioner.

6. Hence, at the stage while entertaining second petition or contempt, the argument advanced, which is practically in the nature of an appeal against the order sought to be corn-plied, cannot be allowed to be raised at the stage of contempt proceeding. It hardly needs to be emphasized that a party facing the contempt proceeding cannot be allowed to assail the order sought to be complied so as to permit the contemnor to advance arguments as if the Court is not dealing with a contempt petition but is entertaining an appeal. That is clearly not the scope of a contempt petition. Hence, even if the argument advanced by the G.P.-I were to be accepted on merit of the claim of the petitioner, the same cannot be allowed to be raised while facing the charge of contempt, especially when the direction of the Court, referred to hereinabove, was to pay dues of the salary and the petitioner on the said date was already drawing the current salary and hence, interpretation cannot be allowed to be attributed to the order that the dues of the salary indicates only the current salary and not the arrears of salary.

8. In view of the reasons assigned hereinabove, we direct the respondent-contemnors to 'pay dues of salary', meaning thereby arrears of salary to the petitioner, within a period of four weeks from the date of receipt of a copy of this order.

9. The contempt petition accordingly is disposed.