Bishnu Mohan Senapati Vs. Harihar Mallick and ors. - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. a. pasayat, j.1. petitioner calls in question legality and propriety of a notice styled as a summon in case of contempt under section 330, crpc' issued by the executive magistrate, sadar, sundargarh. record of the connected case (misc. case no.1 of 1991) reveals that the action taken by the executive magistrate is thoroughly misconceived, basis of the notice, as appears from the order dated 13-5-1991,1st that, while the executive magistrate was going, on 9-5-1991 at 11.30 a.m. in a rickshaw, the present petitioner who was headmaster at a school in bhadrak obstructed him misbehaved with him and shouted at him this according to the executive magistrate, constituted obstructed and misbehavior as a result of which he could not proceed to sundargarh to perform his duties as executive magistrate. this was construed to be (a) prevention of the executive magistrate in the matter of performance of his duties, and (b) willful contempt the order sheet shows that action was taken under section 345 of the code of criminal 1973 (in short cr pc), it further appears that the petitioner was required to show cause as to why he shall n6t be called upon to (a, pay a fire of rs. 200/- (b) shall not be sentenced to simple imprisonment for period of one year, and (c) as to why the matter shall not be referred to this court for higher punishment. copy of the notice which was served on the petitioner show that the petitioner was required to appear on 18-6- 1991 and to show cause as to why he shall not be visited with fine of rs. 200/- and sentenced to simple imprisonment for a period of one month. the order sheet reveals that on 18-6-1991 the matter was directed to be placed on 12-7-1991. the record does not contain the copy of the inspector of schools, bhadrak circle, bhadrak, regarding the indicated in the order dated 13-3-1991) has any application to the facts of the case. former relates to the procedure relating to release of lunatic pending investigation or trial, while latter related to procedure in certain cases of contempt. section 345, crpc provides that when an offence as described in section 175, section 178, section 179, section 180 or section 228 of the indian penal code, 1860 (in short, ipc) is committed in the view or presence of any civil, criminal or revenue court, the court may cause the offender to be detained in custody and may at any time before the rising of the court on the same day, take cognizance of the offence and, after giving the offender a reasonable opportunity of showing cause why he should not be punished under the concerned section, sentence the offender to fine not exceeding two hundred rupees and in default of payment of fine to simple imprisonment for a terms which may extend to one month, unless such fine be sooner paid. obviously there is no question of imposing a simple imprisonment unless it is default sentence. section 345, crpc confers special powers on all court (civil, criminal or revenue) to deal summarily with five kinds of concept which tend to lower dignity or authority of the court, or to interfere with the course of justice, committed by any person in the face of the court. as thecrepodure under the section is summary in nature. sub sections 2 and 3 provide certain safeguards. the requirements are to records (a) the facts of the offence, (b) the answer of the offender to the charge, if any and (c) the finding and sentence. if the offence is under section 228.ipc. the record must a to show the nature and stage of the interruption or insult attributed to accused. the principal ingredient of the offence is intentional in suit or interruption. the same must have been caused doing judicial work. the power given by section 345(1) cr pc does not extend to contempt committed outside the court but only to offences committed in the presence of the court, or in its precincts or office section 178 ipc relates to refusing oath or affirmation when duly required by public servant to make it. section 175. ipc relates to omission to produce document to public servant by person legally bound to produce it section 179. ipc relates to refusal to answer public servant authorised to question. section 180. ipc relates to refusal to sign statement, while section 228. ipc deals with intentional insult or interruption to public servant sitting in judicial proceeding. the allegations even if accepted at their face value, do not relate to any of the offences as stated above further there is no question of petitioner being sentenced to undergo simple imprisonment for one year as indicate in order dated 13-5-1991. the proceeding is, therefore, thoroughly misconceived and is quashed.the criminal misc. case is disposed of.