Krishna Mahto Vs. State of Jharkhand and ors. - Court Judgment

Excerpt:
- constitution of india article 215: [m. karpaga vinayagam, cjm, .y.eqbal & amareshwar sahay, r.k. merathia, narendra nath tiwari, jj] contempt proceedings review powers of high court held, article 215 of the constitution vests the high court with all the powers of court of record including the power to punish for its contempt. this special jurisdiction is inherent in a court of record from the very nature of the court itself. the said special power is not subject to the procedural law either of the criminal procedure code or the contempt of courts act. the high court can deal with the matter summarily and can adopt its own procedure. however, if the high court initiates the proceeding as a court of record, principle of natural justice must be applied and the contemner should be given sufficient opportunity to know the accusation and to defend himself. in the instant case, the contemner was served with the notice to show cause. he was well aware of the accusation. he also admitted his guilt. in view thereof, contention of the contemner lawyer that he was not heard on merit of the contempt application and the impugned judgment of punishing petitioner in contempt of court is violative of principles of natural justice, is not tenable. article 215: contempt proceedings review of conviction held, it is the solemn duty of the bench and bar to maintain and uphold the majesty, authority and dignity of the courts for the sustenance and progress of democracy in our country particularly at the juncture when there are number of instances of outside attempt to disintegrate and destroy the democratic set up of our country. such conduct of a member of the bar brings the authority of the court and the administration of justice into disrespect, erodes and undermine the foundation of the judiciary by shaking faith and confidence of the people in the ability of the courts to deliver free and fair justice, it is a deliberate attempt to insult the high court and denigrate the authority and solemnity and court strongly deprecate such attempt made with biased attitude. such indiscriminate allegations against judges, who are the members of the bench, cannot be a ground for review of the impugned judgment. punishment of prohibiting appearance of contemner/lawyer before high court as well as courts under its jurisdiction is based on his repeated convictions for contempt in the past is not violative of article 19(g) of the constitution. no interference in exercise of review jurisdiction is warranted. - 502/98(r). in the said case, the court noticed the stand taken by the respondents and taking into consideration the fact that the director primary education, bihar, patna failed to decide the question as to how the period is to be counted as per the provisions of bihar service code and salary to which the petitioner would be entitled remitted the matter to the director, primary education, bihar, patna to pass a reasoned order vide court's order dated 3rd august, 1999. 2. inspite of such direction no decision was taken by the director, primary education, bihar, patna till a contempt proceeding was preferred by petitioner being contempt case (c) no. 4. the counsel for the respondents submitted that the petitioner after his transfer though relieved in january, 1994 but failed to report the transferred school for more than 5 years. the officer failed to appreciate that the case of petitioner was not related to grant of leave of any kind for continuous period exceeding five years and thus not covered under rule 76(a) of the bihar service code.orders.j. mukhopadhaya, j.1. the petitioner having not received salary from january, 1994 onwards moved before the authorities. the director, primary education, government of bihar, patna rejected the claim by an order dated 4th august, 1997 communicated vide memo dated 6th august, 1997, the petitioner challenged the aforesaid order before this court in cwjc no. 502/98(r). in the said case, the court noticed the stand taken by the respondents and taking into consideration the fact that the director primary education, bihar, patna failed to decide the question as to how the period is to be counted as per the provisions of bihar service code and salary to which the petitioner would be entitled remitted the matter to the director, primary education, bihar, patna to pass a reasoned order vide court's order dated 3rd august, 1999.2. inspite of such direction no decision was taken by the director, primary education, bihar, patna till a contempt proceeding was preferred by petitioner being contempt case (c) no. 483/2001 it is only thereafter the director, primary education, bihar, patna passed the impugned order contained in memo no. 439 dated 16th march, 2001.3. by the time final order was passed, in view of reorganization of the state since 15th november, 2000, the director, primary education, bihar, patna though had no jurisdiction but it appears that in view of the contempt case he passed the order.4. the counsel for the respondents submitted that the petitioner after his transfer though relieved in january, 1994 but failed to report the transferred school for more than 5 years.5. on the other hand, according to petitioner he continued in the earlier school in view of interim order of stay of transfer order passed by the director, primary education, bihar, patna.6. from the impugned memo no. 439 dated 16th march, 2001 it appears that the director, primary education, bihar, patna though noticed all the facts but rejected the claim relying on rule 76(a) of bihar service code. the officer failed to appreciate that the case of petitioner was not related to grant of leave of any kind for continuous period exceeding five years and thus not covered under rule 76(a) of the bihar service code.7. if the stand taken by the respondents is accepted that the petitioner on transfer was relieved on 12th january, 1994 in such case the petitioner being entitled for transit leave, if he did not reported on expiry of such leave the provision of rule 76(b) of the bihar service code, 1952 shall be attracted not the rule 76(a).8. in the aforesaid circumstances and on the date the order was passed i.e. 16th march, 2001, the director, primary education, bihar, patna having to jurisdiction the impugned order dated 16th march, 2001 is set aside.9. the case is remitted to the secretary, primary education, government of jharkhand who will determine the questions as to how the period shall be counted and what salary to which the petitioner will be entitled, within three months from the date of receipt of representation as may be preferred.10. if it is found that the petitioner was unauthorisedly absent from duty for more than five years and state government intends to remove him from service, the respondents may do so after following the procedures as laid down under civil services (classification, control and appeal), rules. 1935, as per rule 76(b) aforesaid.11. the petitioner may file a detailed representation before the secretary. primary education, government of jharkhand giving details of the period and may enclose evidence in his support.12. the writ petition stands disposedof with aforesaid observations and directions. petition disposed of.

Judgment:
ORDER

S.J. Mukhopadhaya, J.

1. The petitioner having not received salary from January, 1994 onwards moved before the authorities. The Director, Primary Education, Government of Bihar, Patna rejected the claim by an order dated 4th August, 1997 communicated vide memo dated 6th August, 1997, The petitioner challenged the aforesaid order before this Court in CWJC No. 502/98(R). In the said case, the Court noticed the stand taken by the respondents and taking into consideration the fact that the Director Primary Education, Bihar, Patna failed to decide the question as to how the period is to be counted as per the provisions of Bihar Service Code and salary to which the petitioner would be entitled remitted the matter to the Director, Primary Education, Bihar, Patna to pass a reasoned order vide Court's order dated 3rd August, 1999.

2. Inspite of such direction no decision was taken by the Director, Primary Education, Bihar, Patna till a Contempt Proceeding was preferred by petitioner being Contempt Case (C) No. 483/2001 it is only thereafter the Director, Primary Education, Bihar, Patna passed the impugned order contained in Memo No. 439 dated 16th March, 2001.

3. By the time final order was passed, in view of reorganization of the State since 15th November, 2000, the Director, Primary Education, Bihar, Patna though had no jurisdiction but it appears that in view of the contempt case he passed the order.

4. The counsel for the respondents submitted that the petitioner after his transfer though relieved in January, 1994 but failed to report the transferred school for more than 5 years.

5. On the other hand, according to petitioner he continued in the earlier school in view of interim order of stay of transfer order passed by the Director, Primary Education, Bihar, Patna.

6. From the impugned Memo No. 439 dated 16th March, 2001 it appears that the Director, Primary Education, Bihar, Patna though noticed all the facts but rejected the claim relying on Rule 76(a) of Bihar Service Code. The officer failed to appreciate that the case of petitioner was not related to grant of leave of any kind for continuous period exceeding five years and thus not covered under Rule 76(a) of the Bihar Service Code.

7. If the stand taken by the respondents is accepted that the petitioner on transfer was relieved on 12th January, 1994 in such case the petitioner being entitled for transit leave, if he did not reported on expiry of such leave the provision of Rule 76(b) of the Bihar Service Code, 1952 shall be attracted not the Rule 76(a).

8. In the aforesaid circumstances and on the date the order was passed i.e. 16th March, 2001, the Director, Primary Education, Bihar, Patna having to jurisdiction the impugned order dated 16th March, 2001 is set aside.

9. The case is remitted to the Secretary, Primary Education, Government of Jharkhand who will determine the questions as to how the period shall be counted and what salary to which the petitioner will be entitled, within three months from the date of receipt of representation as may be preferred.

10. If it is found that the petitioner was unauthorisedly absent from duty for more than five years and State Government intends to remove him from service, the respondents may do so after following the procedures as laid down under Civil Services (Classification, Control and Appeal), Rules. 1935, as per Rule 76(b) aforesaid.

11. The petitioner may file a detailed representation before the Secretary. Primary Education, Government of Jharkhand giving details of the period and may enclose evidence in his support.

12. The writ petition stands disposedof with aforesaid observations and directions. Petition disposed of.