Court No. - 45

Case :- SPECIAL APPEAL No. - 276 of 2021

Appellant :- Smt Amita Kumari

Respondent :- Dharmendra Sharma And 2 Others

Counsel for Appellant :- Bachchu Lal Yadav

Hon'ble Munishwar Nath Bhandari,J.

Hon'ble Vikram D. Chauhan,J.

Heard counsel for the appellant.

By this appeal, challenge is made to the order dated 22.09.2021

on a contempt petition. The contempt application was dismissed

by the learned Single Judge finding pendency of the application

for vacation of stay order along with counter affidavit. In those

circumstances, the contempt application was disposed of with

the observation that unless the application seeking vacation of

stay is adequately addressed and rejected, a case for contempt

proceeding is not made out.

Learned counsel for the appellant submits that a writ petition

challenging the similar order followed by a stay was complied

by the respondents while compliance in the present matter was

not made, therefore, their action is discriminatory yet the

learned Single Judge ignored the aforesaid. The interim order

passed by this Court was required to be complied without

further delay. Accordingly, the order dated 22.09.2021 be set

aside with remand of the case to the learned Single Judge.

We have considered the submissions made by counsel for the

appellant and perused the record.

The facts on record shows a writ petition in the hands of the

appellant to challenge the order of dismissal from service.

Interim order was passed in the said writ petition. The opposite

party filed an application for vacation of stay order along with

counter affidavit in November, 2020. Consideration of the

aforesaid application was not made and in the meantime,

contempt petition was filed. Learned Single Judge disposed of

the contempt petition with a direction to the appellant to file

rejoinder affidavit within three weeks so that application filed

by the non-appellant may be heard and decided. The Writ Court

was requested to consider and decide the application for

vacation of stay order at an early date.

We do not find any illegality in the order in view of the fact that

a contempt petition was not maintainable pending an

application for vacation of stay order and, therefore, an

appropriate direction for consideration of the application at the

earliest has been given by the learned Single Judge.

Hon'ble Apex Court in the case of State of Jammu and

Kashmir vs. Mohd. Yaqoob (1992) 4 SCC 167, held that

whenever an application has been filed for vacation of interim

order, the proceedings of contempt should be deferred till

disposal of such application. Further, in Mohd. Yaqoob (supra),

Apex Court has also disapproved the practice of enforcing the

ex parte interim orders in contempt proceedings. The Supreme

Court held that so long the stay matter in the writ petition is not

finally disposed of, the further proceedings in the contempt case

was misconceived and no order therein should have been

passed.

In view of the above, we do not find any reason to cause

interference in the order impugned herein. It is more so when

there is nothing on record to show that in the matter referred by

the petitioner-appellant, there was an application for vacation of

stay and pending that application, the learned Single Judge

asked for compliance. It may be that on application for vacation

of stay order was filed in the other matter and in those

circumstances, the contempt matter may have proceeded.

In view of the above, while dismissing the appeal, direction is

given to the Registry to list the writ petition on the application

for vacation of stay order before the learned Single Judge

pursuant to the order passed by the learned Single Judge and

sufficient time having expired, the writ petition would now be

listed on 24.11.2021 where at least application for vacation of

stay is considered and decided by the learned Single Judge.