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2001 Supreme(All) 419

IN THE HIGH COURT OF ALLAHABAD
SUSHIL HARKAULI
SHAKUNTALA GOSWAMI - Appellant
Versus
SMT.SAROJ CHAUDHARY - Respondents
C. M. W. P. 3961 Of 2000
Decided On : 05/03/2001

Advocates Appeared:
P.K.GOSWAMI, T.P.SINGH

The findings recorded while passing interim orders are not final and binding at the final hearing.

Headnote:

Contempt - Transfer of Government Teacher - - [Contempt of Courts Act, 1971, Section 2(b)] - The court examined the transfer of a government teacher and the compliance with the transfer order. The court found that the petitioner had not handed over charge of her previous posting, and therefore, the transfer order had not been given effect to in accordance with law. The court also considered the legal permissibility for the authorities to comply with the order and the delay in compliance. The court dismissed the contempt petition, stating that the findings recorded while passing interim orders are not final and binding at the final hearing.

Fact of the Case:

The petitioner, a government teacher, was transferred to a different school. The petitioner alleged that the transfer order had not been given effect to in accordance with law as she had not been relieved from her previous posting. The court examined the compliance with the transfer order and the delay in compliance.

Finding of the Court:

The court found that the petitioner had not handed over charge of her previous posting, and therefore, the transfer order had not been given effect to in accordance with law. The court also considered the legal permissibility for the authorities to comply with the order and the delay in compliance.

Issues: Compliance with the transfer order, legal permissibility for the authorities to comply with the order, delay in compliance, and the finality of findings recorded while passing interim orders.

Ratio Decidendi: The findings recorded while passing interim orders are not final and binding at the final hearing. The court dismissed the contempt petition, stating that the observations made were only prima facie observations for deciding the contempt petition and should not be interpreted to mean final findings at the time of final adjudication of the writ petition.

Final Decision: The contempt petition was dismissed, and notices issued were discharged. The court found no further action was called for in the contempt petition.

SUSHIL HARKAULI, J.

( 1 ) I have heard Sri T. P. Singh, senior advocate, who appeared for the petitioner before lunch and who desired that this case should be finally disposed of today itself. After lunch Sri T. P. Singh did not appear and Sri P. K. Goswami advocate representing the petitioner stated that he would argue the case. I have heard him also at great length. The relevant facts appearing from the available record are as follows.

( 2 ) THE petitioner was a teacher in the Government Girls Intermediate College, Phaphamau, District Allahabad. She was transferred by order dated 18-2-2000 to the Government Girls Higher Secondary School, Tharwai, District Pratapgarh. She filed a writ petition being Writ Petition No. 31852 of 2000 in which this Court passed the following interim order:"as an interim measure, it is provided that in case the impugned order dated 18-7-2000 (Annexure 3 to the petition) has not already been given effect to in accordance with law,the operation thereof shall remain stayed till further orders by this Court. It is also provided that pendency in the matter will not preclude the authorities for (from ?) reconsidering the matter in the event of representation being filed on behalf of the petitioner. Dated 27-2-2000"

( 3 ) BEFORE the above order was passed one Smt. Suman Rani Yadav, who had been posted by transfer in place of the petitioner, had joined her new posting.


( 4 ) THE case of the petitioner was that she had not handed over charge of her previous posting at Phaphamau, Allahabad and, therefore, it could not be said that transfer order had been given effect to in accordance with law. When the matter came up again before the Court another order dated 11-10-2000 was passed. The relevant part of which is as follows :"from the material on record it is clear that on the date the order was passed charge was not taken from the petitioner. The same was evident from the letter written by the Principal dated 17-8-2000 filed as Annexure R. A. 15 to the rejoinder affidavit. In view of above noted facts, the order dated 27-7-2000 is hereby confirmed. It is further directed that petitioner shall be permitted to continue to hold post of Assistant Teacher at Government Girls College, Phaphamau, Allahabad. "

( 5 ) AT this point it may be relevant to refer to the said letter of the Principal dated 17-8-2000 which has been referred in and is the basis of the above interim order dated 11-10-2000. A copy of it is filed as Annexure 3 to this contempt petition. The letter has been written by the Principal of the College at Phaphamau to the Principal of the College at Tharwai, saying that charge has not been handed over by the petitioner, Smt. Shakuntala and, therefore, she should be required to hand over the charge so that her Last Pay Certificate (LPC) and Service Book can be forwarded by the Phaphamau College to the Tharai College.

( 6 ) THE letter would indicate, that the petitioner was not available for her duty at the college at Phaphamau and had left without handing over charge. Prima facie such conduct on part of any employee would border on misconduct. However no final opinion can be expressed on this point as the circumstances in which the petitioner left the Phaphamau College without handing over charge are not on record in this contempt petition.

( 7 ) IT is well settled that no party can be permitted to take advantage of his own wrong. Thus in absence of good explanation of the aforesaid unsual conduct, the petitioner does not appear to be entitled to take advantage of the words in accordance with law used in the interim order dated 27-7-2000. However, because the learned Single Judge had passed the interim order dated 11-10-2000, therefore, in this contempt petition the Court passed a detailed order 22-2-2000 which is reproduced below :"the petitioner was transferred and in her place one Smt. Suman Rani Yadav was posted as result of transfer. The case of the respondents is that Smt. Suman Rani Yadav joined in












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