Contempt in Premature Retirement Case

HC shows displeasure; rejects application recalling of warrants of GAD Secy

03/06/2017

Jammu, Jun 2: Justice Alok Aradhe of J&K High Court Jammu Wing shown displeasure and rejected the application seeking recalling of bailable warrants of Commissioner/Secretary GAD in much publicized contempt case in premature retirement case seeking implementation of the judgment.
When the matter was taken-up, Justice Alok Aradhe observed that when this Court was about to pass an order directing the concerned Senior Superintendent of Police to file an affidavit whether or not the bailable warrants have been served on Commissioner/Secretary GAD, the Sr. AAG submitted that appropriate orders be passed on the applicable filed by the Commissioner/Secretary GAD seeking recall of the order dated 22.05.2017 whereby Court issue bailable warrants in the amount of Rs. 10,000/- for securing the presence of Khurshid Ahmed Shah, Commissioner/ Secretary, General Administration Department, Government of Jammu and Kashmir .
Justice Alok Aradhe after hearing both the sides observed that "This Court vide order dated 07.04.2017 had directed that in case the respondents are unable to produce any order from the Division Bench, 2, namely, Khurshid Ahmed Shah, Commissioner/Secretary, General Administration Department, Govt. of Jammu and Kashmir shall remain present before the Court on 20.04.2017. However, on 29.04.2017, the matter was adjourned at the request of Mrs. Seema Shekhar, Sr. AAG. Till today neither the respondents have filed compliance report nor have produced copy of any order passed by the Division Bench. In the circumstance aforesaid, this Court is left with no option but to issue bailable warrants in the amount of Rs. 10,000/- for securing the presence of Khurshid Ahmed Shah, Commissioner/Secretary, General Administration Department, Government of Jammu and Kashmir on the next date of hearing. Let the warrants be executed through SSP concerned on the aforesaid respondent."
Justice Alok Aradhe further observed that has filed the instant application for recalling of order dated 22.05.2017, inter alia, on the ground that against the order passed by this Court, the respondents have filed Letters Patent Appeal along with an application for stay which is pending consideration before the Division Bench of this Court. Sr. AAG Seema Shekhar appearing for the Commissioner/Secretary GAD has submitted that in connected appeal, on 18.04.2017 the Division Bench condoned the delay and directed the Registry to diarize the appeal. Thereafter on 28.04.2017, the matter was heard and the following order was passed that this matter is part heard before this Bench. The same be listed on the next date on which the Bench is available."
Justice Alok Aradhe further observed that thereafter by order dated 29.04.2017, the Division Bench directed that the appeals, namely, LPASW Nos. 69/2017, 70/2017, 71/2017, 72/2017 and 73/2017 be tagged and listed along with LPASW No.68/2017. Senior Additional Advocate General has further submitted that initiation of contempt proceedings for non-compliance of the order during the pendency of the appeal and application for stay is not proper. In support of her submissions, counsel for the Commissioner/Secretary GAD has referred to the decision of the Supreme Court in the case of Modern Food Industries (INDIA) Ltd. & Anr. v. Sachidanand Dass & Anr and has invited attention of this Court of the aforesaid decision. It is, therefore, submitted that order dated 22.05.2017 be recalled and bailable warrants issued against the Commissioner/Secretary GAD be withdrawn and the personal appearance of the Commissioner/Secretary GAD be dispensed with and he be permitted to appear through counsel in the interest of justice.
Justice Alok Aradhe after considering submissions of both the sides observed that it is evident that the Supreme Court has reiterated the rule that mere filing of an appeal alongwith an application for stay do not by themselves absolve the appellant from obeying the order under appeal and any compliance with the order passed by the Single Judge would be subject to the final result of the appeal. Court further observed that from perusal of the aforesaid decision, it is evident that the Division Bench in the aforesaid decision neither took the appeal for admission nor considered the prayer for inter-locutory stay. The relevant extract is that Single Judge of the High Court by his Order dated 10-1-1992 quashed the order of termination of the services of the first respondent by the appellants and directed his reinstatement and payment of back salary. Appellants preferred an appeal to the Division Bench and also sought a stay, pending appeal, of the operation of the Single Judge's order. The Division Bench did not take up the appeal for admission nor considered the prayer for interlocutory stay. In the meanwhile, on the allegation that the Single Judge's order had not been obeyed, the first respondent moved for initiation of proceedings for contempt against the appellants pursuant to which the High Court directed the Chairman of the first appellant to appear in person so that the complaint of contempt be proceeded with."
Justice Alok Aradhe further observed that in the instant case, admittedly the appeal was taken up for hearing by the Division Bench and was marked as 'Part Heard". It was open for the respondents to make a prayer before the Division Bench for stay of the order passed by this Court. From the order sheet from the Division Bench, which has been produced by the counsel for Commissioner/Secretary GAD and is taken on record, it is not evident that any such prayer was made before the Division Bench. It is pertinent to note that no reason for non-appearance of the Commissioner/Secretary GAD has been shown before this Court. Besides that, for yet another reason no relief can be granted to the respondent No.2 in the application, namely, MP No.1/2017. The Commissioner/Secretary GAD has filed the application for recall of the order dated 22.05.2017, in which following prayer has been made: "It is therefore most respectfully and humbly prayed, that the orders dated 22.05.2017, may be recalled and the bailable warrants issued against the applicant withdrawn keeping in view the submissions made herein above and the personal presence of the applicant may kindly be dispensed with and the applicant permitted to be represented through counsel in the interest of justice and equity."
Justice Alok Aradhe further observed that it is well settled in law that where an order or judgment has been pronounced without jurisdiction or in violation of the principle of natural justice or where order has been passed without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of the Court, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes nullity.
Justice Alok Aradhe further observed that in the instant case, from the close scrutiny of the application filed by the Commissioner/Secretary GAD for recall the order dated 22.05.2017, falls in none of the aforesaid categories mentioned by the Supreme Court in which an order of recall can be passed. It is pertinent to mention here that the Commissioner/Secretary GAD is not seeking deferment of this contempt proceeding by way of application for recall and therefore, also the decision relied upon by the counsel for the Commissioner/Secretary GAD in Modern Food Industries (INDIA) Ltd. & Anr. v. Sachidanand Dass and Anr., is of no assistance to Commissioner/Secretary GAD.
With these observations court rejected the application seeking recalling of warrants as no ground for recalling of the order is made out and further observed that from the perusal of the office note, it is evident that bailable warrants have been issued against Commissioner/Secretary GAD on 25.05.2017. However, there is no office report whether the aforesaid bailable warrants have been received back executed or unexecuted and directed Registry is directed to submit the report whether or not the bailable warrants have been executed on Commissioner/Secretary GAD. JNF

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