JANG BAHADUR SINGH versus BAIJ NATII TIWARI

JANG BAHADUR SINGH

BAU NATII TIWARI April 26, 1968 (S. M. SIKRI AND R. S. BACHAWAT, JJ.J

Con.Je1npt of Courf--Writ Petition pending to quash suspetisiori order--Star ,·acated--Service of charge-sheet in respect of disciplinary procccdln.gs-··l! amounts to conte111pt. Pending an inquiry into the conduo~ of th~ rcspondent-PrincioaJ of college in respect of certain allegations. the respondent w1ts suspended. The respondent filed writ petition in the High Court to qua.'11 the order or suspension. and al.so obt;1incd ex-parte stay ag:tin'it the conti-nuation of the inquiry. The ~.t-parte slay 'W'as vacated. Thereafter the appcllant-m.anager of the colJegc. served charge-')hcet on the resoondcnf and caUed upon him to explain 1hc allegations. The rcc;pondent moved the High Cwn for holding the appellant quilty of contempt of C.ourt. the High Court held the appeilant guilty of contempt of Cuurt. Jn appeal. thi' Court.

HELD : The appeal mu't he allowed.

An authority holding an joq11iry in Aood faith in e:s::crcisc of the po"''crs '~tc<l in it by statutory r'c):!:u;a1ions is not guil!y of contempt of Court. mercly because parallel inquiry is imminem: or pendio2 before Court. The issue in the di~iplinary Ofoceedings is .,.,.hcther the eo1· ployee is guilty of the charge' on which it ;, proposed to take acli~n again:.! him. The same is~ue may arise for decision in civil or criminal proceeding pending in Court. But the pendency of the court procred-io~ does ncr. bar the taking of dio,ciplinary action. The power of taking ~u.ch action is vested in the disciplinary authority. The civil or criminnl court ha'> nu -.uch power. 'Ibe in.itiati'on and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere .. ,,,i.:h the course ot justice in the pending cow-t orocttdin):!:. The employee jc; free 1n mov~ the court for an order re.straining th~ continuance of the dis.cipliniiry proceedings. If ht" obtains stay order, wilful vio1ati0:1 of the order would of cour.c amount to contempt L\f c,Jurt. Jn th~ ahsence of .;,tay order r:hc dirciplinary authority is frC'C to e'.'(erci.,c ii-; lawful nowm. [1370-G]

In this case, ~-tftcr the stav order "'ac; vac;llcd bv thr Hi~h Courr. th<.> appellant bona fide believed thar the disciplinan· procccdinl?s could he cootinued. and the char.i~c-shcct wao,; served in ~ood fai!h and w::s not intended or calculated 10 interfere wilh the court procet.-dinl!". Ralhcr the respondent institult'd the cort.ernPt procccdin!!s \~·ith uflcrior moti\"t•<-, to indefinitdv hold up the inquirv after ha,·ine failed 10 obtain thC" ~1:1\' order. [ D<J E-FJ

Tukc1ran1 Gaokar "· S. N. Shukla, rt968] J S.C.R. 422. Rt"C!. v. (;ray. [1900] 2 Q.B. 36. Ar1'111r Rrgino!d Peror.,· v. Thr K;nf'!. [19511 A.C. 482. 488. R, ·. S/tri ,\fchra A.l.R. 1962 M.P. 72: Saihal Kumar G11pra v. B. K. Sm [19611 3 S.C.R. 460: Delhi C/orh <md GNte· ral Mills Ltd .. , .. Kau.<hal llhan, [1%01 3 S.C.R. 227: Tata Oil Mills Co .. [,rd v. The Workmen. A.1.R. 1965 S.C. 155: Tlir King v. Pnrmanand. A.1.R. 1949 Pal. 282: D. !. Shield v. Rameram. Al.R. 1955 Andhro Prad~sh, 156 referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 187 of 1965.

Appeal by special leave from the judgmen~ and. o~der da~ed August 3, 1965 of the Allahabad High Court tn Cr!Ullnal Misc. Contempt Case No. 7 of 1965.

U. P. Singh and D. N. Mishra, for the appellant.

Sobhagmal Jain, S. P. Singh and J. P: Goyal, for the respon-dent.

The Judgment of the Court was delivered by

• Bacbawat, J.-The appellant is the manager of Hiralal Memo-c rial Intermediate College, Bhaurauli, in the District of Azam-garh. The respondent was the principal of the College. On December 14, 1963 the respondent drew from the Boys' Fund of the college two sums of Rs. 189 for payment of scholarship to· the two Harijan students for the period from May to November 1963. On withdrawal of the monies he sent to the Harijan Tatha Saniaj Kalyan Adhikari form called Form No. 14 to the Adhi-D kari containing receipt of the scholarship signed by the twe> students and counter-signed by himself. The Adhikari wrote to the appellant informing him of the complaint made by the stu-dents that in spite of the submission of Form No. 14 they had not received the scholarship. On March 24, 1964 the District Inspector of Schools visited the College and on finding that the· scholarships had not been paid called for an explanation for non-payment. On April 10, 1964 the appellant forwarded the Ins-pector's letter of March 24 to the respondent and 'asked him ta give an explanation. The respondent sent reply stating that payments were made to the students on March 31, 1964 and that the delay in payment was due to the absence of the students from the College and the fact that the register on which receipts had to be obtained were with the Inspector from December 8, 1963 to March 10, 1964. meeting of the managing committee· was called on April 14, 1964 to consider the Inspector's letter and the respondent's explanation. According to the appellant, on April 19, 1964 the managing committee met and resolved to· take disciplinary action against the respondent. On April 21. 1964 the appellant passed an order suspending the respondent pending the inquiry. The order stated that it was passed in exer-cise of the power vested in the appellant by the rules and the resolution of the managing committee dated April 19, 1964. oopy of the resolution was attached. On April 24, 1964 th.,. respondent filed writ petition in the High Court of Allahabad· praying for apprapriate writs quashing the order of suspension. He alleged that the appellant had no authority to pass the order and that the order was made in bad faith. On the same date the respondent obtained an ex parte order from the High Court

staying the operation of the suspension order. On July 22, 1964 . after hearinj! both the parties the High Court vacated the stay .order. On December 25. I %4 the appellant served charge-· sheet on the respondent. Charµc No. (IV) was as follows :-

On July 22, 1964

"The scholarship :1mounts of Rs. 216/25 and Rs. 216/25 of Sri Karam Dco ·Ram and Sri Jai Raj Ram students of Class Xll for the mon1hs of May 1963 to J\ovember J 963 were withdrawn by you on 14-12-1963 but the same have neither been disbursed to the students concerned nor refunded 10 the Treasury. Thus you arc i:uilty for misappn>primion of the afore-. said amount.

Evidence which is proposed to be considered 111 support of the charge

l. Letter of D.J.0 .. elated 24-3-1964.

2. Letter of ll.W.O., dated :i 1-3-1 %4.

3. Statement of students.

TI1us it is evidently clear th:1t you being entrusied with the aforesaid money have dishonestly misappro-priated the amount for your own use and the poor stu-dents have heen put to loss by your misconduct. As such you have committed criminal breach of trust dis-honestly punishable under sec. 406 l.P.C."

The respondent \\·as r.;quired to .submit his cxplan'1tion by Jarm· .ary 24. 1965. Instead of submitting his explanation the rcspon-. dent filed petition in the High Court asking for committal of ·the appellant for contempt of court. His contention was that the aforesaid charge was the subject matter of inquiry in the pending writ petition. and that as the respondent had launched par:illcl inquiry in the matter he had committed contempt of court. The High Court accepted the contention and held that the respondent was guilty of contempt of court and directed him to pay line of Rs. 500 and costs. The respondent has filed this appeal after ohtaininp special leave fro111 this Coun.

The conditions of service of the teachers in the Cnlle~e arc )!Overned by sec. 16 of the Intermediate Educ<1tion Act.'.1921 (l!.P. Act II of 1921) and the Reµulations framed thereunder. Repulations 31 to 45 provide for punishment. inquiry and sus-pension. 111e Committee of Mana)!emcnt is the punishin~ ;iuthority. The punishments of dismis.sal. removal. di.<charge ~llld reduction in rank and dimunition in emoluments require prior approval of the Tnspec:or. If it is decided to take disciplinary. action against an employee. the inquiry is made by an authority appointed hy the commit1cc. The ground on which it is propos·:d

to take action is reduced in the form of definite charges. The charges are communicated to the employee, who is required to submit written statement of his defence. If the employee or the inquiring authority so desires, an oral inquiry takes place. The inquiring authority then makes report. On receipt of the rep?rt the punishing authority takes its decision on the case. On receipt of the decision of the committee the Inspector gives his decision. The Committee then implements the decision of the Inspector. The Regulations indicate definite time limits for the communica-tion of the charge, submission of the written statement of defence, completion of the inquiry, the making of the report by the in-quiring authority, the taking of decisions by the punishing a~tho­rity and the Inspector and the implementation of the decJSion. Pending the inquity and final orders, the employee may be sus-pended by the committee. The power of suspensi.on may be exercised by the manager if it is delegated to him under the rules of the institution. The employee under suspension is paid subsistence allowance of an amount equal to half his pay. The issue in the disciplinary proceedings is whether the em-ployee is guilty of the charges on which it is proposed to take action against him. The same issue may arise for decision in civil or criminal proceeding pending in court. But the pen-dency of the court proceeding does not bar the taking of discipli-nary action. The power of taking such action is vested in the disciplinary authority. The civil or criminal court has no such power. The initiation and continuation of disciplinary proceed-ings in good faith is not calculated to obstruct or interfere with the course of justice in the pending court proceeding. The em-ployee is free to move the court for an order restraining the conti-nuance of the disciplinary proceedings. If he obtains stay order, wilful violation of the order would of course amount to contempt of court. In the absence of stay order the discipli-nary authority is free to exercise its lawful powers.

An authority holding an inquiry in good faith in exercise of the powers vested. in it by statutory regulations is not guilty of contempt of court, merely because parallel inquhy is imminent or pending before court. In Tukaram Gaokar v. S. N. Shukla(') this Court held that the initiation and continuance of proceedings for imposition of penalty on the appellant for his alleged complicity in the smuggling of gold under sec. 112(b) of the Sea Customs Act, 1962 did not amount to contempt of court though his trial in criminal court for offem;es under sec. J 35 (b) of that Act and other similar offences was imminent and identical issues would arise in the proceedings before the cust01ru authorities and in the trial before the criminal court. This Court observed :-

(I) [1968]3 S.C.R. 4~2. UO Sup/68-10

'To constitute contempt of court, there must be in-volved some ·act done or writing published calculated to bring court or judge of the court into contempt or to lower his authority' or 'something calculated to obstruct or interfere with the due course of jtLstice or the lawful process of the court.' Reg. v. Gray (1) Arthur Reginald l'erors v. Tlie Kii;g('). The customs ollicers did nothini; of this kind. They are acting bona fide discharging their statutory duties under ss. 111 and 112. The power of-adjudicating penalty and con-fbcation under those sections is vested in them alone. The criminal court cannot make this adjudication. The issue of the show cause notice and proceedings there-under arc authorised by the Act and arc not calculated to obstruct the course of justice in any Court. We sec no justification for holding that the proceedings amount to contempt of court."

In Re: Shr Mehra(") the High Court of Madhya Pradesh held that the bona fide holding of depanmcntal inquiry on charge of misappropriation against government servant did not amount to contempt of court merely because criminal prosecu-tion on the same charge was pending against bini. fortiori the inquiry cannot amount to contempt court if it is not parallel investigation on matter pending before court. see Saiba/ Kumar Gupta v. B. K. Sen(').

In Delhi Cloth and General Mills Ltd. v. Kaushal Bhan(') and Tata Oil Mills Co., Ltd .. v. The Workmen(") the Court held that domestic inquiry by the employer into the charges against workman was not vitiated because it was· held during the pen-dency of criminal trial into the same or similar charges. It may be desirable to stay the domestic inquiry pending the final clisJ,?OSal of the criminal case but the inquiry could not be charac-tcriscd as ma/a fide merely because it was held during the pcn-dency of the criminal proceedings.

Jn The King v. Parmanand(1) Full Bench of the Patna Hij!h Court held that the giving or withholding of consent to the withdrawal of the prosecution under sec. 494 of the Code of Criminal Procedure was judicial act and it was improper for the court to pem1it withdrawal of the prosecution on orders of the Government without making any attempt to exercise its dis-cretion. that the power to grant adjournments of pending pro-ceedings under s. 344 of the Code and the power to call for records in pending or completed case under secs. 423. 435 of the

--(1).[jQ0012Q.B-:J6.---

('1 1195\)A.C.482.488

A.l.R, 1962 7\-1.P. T2.

<.ii [\l)Gq ."'1S.C.R.4<JO (f,> A.1.R. 1%j S.C. 1 <S.

(5) [19601JS.C.R.121.

(7) A.l.R. 1949 P:J 282.

Code and the general rules and circular orders were vested in: the comt and not in executive officers. Those questions do not arise for decision in this case. Narayan, J. in separate judg-ment observed that iii an inquiry with regard to matter which. is sub judice was bound to interfere with the even and ordinary course of justice and parallel inquiry of this kind would amount to opening the door for contempt. In that case the exe-cutive officers were issuing orders to the criminal court calling for its records and asking it to adjourn the proceedings and ro consent to the withdrawal of the prosecution and on those facts it might be possible to hold that the officers were guilty of con-tempt. But we cannot agree with the broad observation that parallel inquiry on matter pending before court necessarily amounts to contempt of court. We think that an inquiry by domestic tribunal in good faith into the charges against an em-ployee does not amount to contempt of court merely because ar. inquiry into the same charges is pending before civil or crimi-nal court. In D. J. Shield v. Ramesam([1 ]) the Andhra Pradesh High Court agreed with the observations of Narayan, J. but the decision is distinguishable because the coun found that the in-quiry by the Collector into the charges against sub-magistrate was not parallel inquiry and did not amount to contempt of court.

After the High Court vacated the stay order the appellant bona fide bdieved that the disciplinary proceedings could be continued. The service of the charge-sheet on the respondent was made in good faith and was not intended or calculated to interfere with the court proceedings. We are inclined to think that the respondent instituted the contempt proceeding with ulterior motives. He was under suspension and was drawing half pay for doing nothing. His intention was to delay the inquiry into the charges against him. Having failed to obtain the stay order he launched the contempt proceeding so that the inquiry might be indefinitely held up. In view of the order under appeal' he has successfully delayed the inquiry so far.

In the result, we allow the appeal, set aside the judgment and order of the High Court dated August 3, 1965 and dismiss the petition filed under the Contempt of Courts Act.

Appeal allowed_