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PUNJAB & HARYANA HIGH COURT
R.S.Narula, Bal Raj Tuli and Gurnam Singh JJ.
Parkash Chand
Versus
S.S.Grewal
Criminal Original No. 212 of 1979,
Decided On : FEBRUARY 18, 1974
CONTEMPT OF COURT - Declaratory Decree - Reinstatement - Arrears of Salary - Enforceability - Civil Process - Contempt Proceedings - Legal Advice - Appeal - Effect.
Fact of the Case:
The petitioner, a public servant, was dismissed from service in 1964. He challenged the order of dismissal and obtained a decree from the civil court declaring the dismissal to be illegal, void, and of no effect. The government did not reinstate the petitioner or pay him arrears of salary. The petitioner filed a contempt petition against the government officials responsible for implementing the decree.
Finding of the Court:
1. A declaratory decree declaring the dismissal of a public servant to be void and illegal and treating him to be still in service is to be construed as enjoining upon the government to reinstate the decree-holder and grant him all benefits and privileges, including his past and future emoluments. 2. A declaratory decree cannot be executed as it only declares the rights of the decree-holder qua the judgment-debtor and does not in terms, direct the judgment-debtor to do or to refrain from doing any particular act or thing. 3. Mere inaction on the part of the government or its servants to take any action to reinstate a decree-holder whose dismissal has been declared to be void or ineffective and grant him all the benefits and privileges of his service will not amount to contempt of court, but, if the conduct of the particular government servant, whose duty it is to give effect to the decree, shows that he has wilfully and deliberately refrained from giving effect to the decision of the civil court, a case of contempt of court may arise. 4. The obtaining of legal advice or the pendency of an appeal will not ordinarily constitute a good defense to a contempt of court charge, but these matters will be relevant to determine whether an offense has been committed or not and for the infliction of a light sentence if the offense is held to have been committed.
Issues: 1. Whether a decree of a civil court declaring the order of dismissal of a public servant as void and illegal and treating him to be still in service can be construed as enjoining upon the government to reinstate the decree-holder and grant him all the benefits and privileges, including his past and future emoluments? 2. Whether such a decree is executable by a civil process? 3. Whether the refusal or failure of the government or its servants concerned to take any action to reinstate such a decree-holder and grant him all the benefits and privileges of his service amounts to contempt of court. 4. If question No. 3 is found in the affirmative, whether the state or its officials concerned can take shelter behind the legal advice tendered to them or the fact that an appeal against the decree is pending though no order staying the operation of the decree had been obtained.
Ratio Decidendi: 1. A declaratory decree declaring the dismissal of a public servant to be void and illegal and treating him to be still in service is to be construed as enjoining upon the government to reinstate the decree-holder and grant him all benefits and privileges, including his past and future emoluments. This is because such a decree restores the public servant to his legal status of having remained a government servant throughout, as if the order of dismissal never existed. 2. A declaratory decree cannot be executed as it only declares the rights of the decree-holder qua the judgment-debtor and does not in terms, direct the judgment-debtor to do or to refrain from doing any particular act or thing. 3. Mere inaction on the part of the government or its servants to take any action to reinstate a decree-holder whose dismissal has been declared to be void or ineffective and grant him all the benefits and privileges of his service will not amount to contempt of court. This is because contempt of court requires wilful disobedience to a court order, and mere inaction does not constitute wilful disobedience. 4. The obtaining of legal advice or the pendency of an appeal will not ordinarily constitute a good defense to a contempt of court charge, but these matters will be relevant to determine whether an offense has been committed or not and for the infliction of a light sentence if the offense is held to have been committed. This is because legal advice and the pendency of an appeal may show that the alleged contemner acted in good faith and did not wilfully disobey the court order.
Final Decision: The court answered the questions referred to it by the division bench as follows: 1. Yes, a declaratory decree declaring the dismissal of a public servant to be void and illegal and treating him to be still in service can be construed as enjoining upon the government to reinstate the decree-holder and grant him all the benefits and privileges, including his past and future emoluments. 2. No, such a decree is not executable by a civil process. 3. Mere inaction on the part of the government or its servants to take any action to reinstate a decree-holder whose dismissal has been declared to be void or ineffective and grant him all the benefits and privileges of his service will not amount to contempt of court. However, if the conduct of the particular government servant, whose duty it is to give effect to the decree, shows that he has wilfully and deliberately refrained from giving effect to the decision of the civil court, a case of contempt of court may arise. 4. The obtaining of legal advice or the pendency of an appeal will not ordinarily constitute a good defense to a contempt of court charge, but these matters will be relevant to determine whether an offense has been committed or not and for the infliction of a light sentence if the offense is held to have been committed.
BAL RAJ TULI, J.
1. The petitioner (Parkash Chand) was recruited as a clerk as a the Punjab Public Works Department (Buildings and Roads Branch), in February, 1938, and was promoted as senior clerk in May, 1945, and as Head Clerk in September, 1946. He was dismissed from service on July 19, 1964, while serving as Head Clerk at Hissar. He challenged that order of dismissal by way of a suit for declaration that the order of his dismissal was illegal, ultra vires, unconstitutional and mala fide and that he continued to hold the post of Head Clerk in the State of Punjab with all the privileges of the service. The learned trial Court found that the order of dismissal had not been passed by the competent authority and, therefore, it was bad in law. He, accordingly, decreed the suit of the petitioner on May 8, 1969. That decree was affirmed by the District Judge in appeal on February 11, 1970. Against the appellate decree, the State of Punjab filed an appeal (R. S. A. 1330 of 1970) in this Court which was dismissed in limine by our learned brother Mahajan, J., on September 23, 1970. An application for permission to file a Letters Patent appeal was dismissed by the learned Judge also in limine. The Punjab State then moved the Supreme Court under Article 136 of the Constitution for special leave which was granted and the appeal is pending in that Court.
2. In spite of the decree declaring the dismissal of the petitioner to be illegal, void and of no effect, the Punjab Government did not reinstate him nor paid him the arrears of his salary. Since he was not reinstated, salary for the future was also not paid. The petitioner then filed the present petition under Section 3 of the Contempt of Courts Act against Shri Paramjit Singh, I.A.S., Secretary to Government, Public Works Department (B. and R.) Punjab, Chandigarh, and Shri Kewal Krishan, Chief Engineer, Public Works Department (B. and R.), on December 23, 1970, wherein after giving the history of the litigation he stated in paras 6 and 7 as under :-
"6. That after the judgement of the Sub-Judge, and the District Judge. the petitioner had been continuously requesting orally as well as in writing to the Secretary to Government, P.W. D, B and R, the Chief Engineer, P.W. D. Builders and Roads, Chandigarh, and also to the Minister concerned, for reinstatement and for payment of salary and allowances, etc. etc. but the respondents have not cared to do anything in the matter.
7. That the inaction of the respondents to pay the petitioner his due salary and allowances and also to reinstate him is gross contempt of this Hon ble Court and amounts to lower the prestige of this Hon ble Court in the minds of the general, public as they have mala fide flouted the orders of the Courts."
Notice of this petition was issued to the said respondents who filed, their written statements in which it was mentioned that the entire case from the stage of enquiry to the filing of appeals was conducted by the Vigilance Department of the Punjab Government and not by the Public Works, Department (B. and R. Branch). The said respondents were net, in any way, concerned with the matter nor had any occasion to pass any order thereon and, therefore, the question of any inaction on their part did not arise. Thereafter, the petitioner amended his petition and impleaded Shri S.S. Grewal, I. A. S. Chief Secretary to Government, Punjab, and Secretary, Vigilance Department, as respondent 1. Shri Grewal filed his affidavit in reply to the petition in which he stated that - "there is one application written by the petitioner dated 5th November, 1970 and addressed to the Secretary to Government Punjab, Vigilance Department, Chandigarh, which is available on the record of the case. In this application the petitioner proved that his case may be finalised etc. The Government then moved the Hon ble High Court for permission to file Letters patent Appeal against the judgement of Hon ble Mr. Justice Mahajan dated 23-9-1970 and
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