# Dr. Satendra Prakash Rastogi v. Prashant Dwivedi, Prin. Secy. Medical Health & Family Planni

- **Citation:** (2020) 6 ILRA 1128
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2017-08-22
- **Case number:** Contempt No. 1690 of 2017
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-satendra-prakash-rastogi-v-prashant-dwivedi-prin-secy-medical-health-family-44310
- **Pages:** 5

## Headnote

Civil contempt - Contempt of Courts Act
(70 of 1971) - Section 12 - deliberate
disobedience - Merely seeking legal
advice to challenge writ court order
before superior forum - cannot be said to
be deliberate disobediance - every
litigant, including the State, has a right
to take recourse to the legal remedy
available to them under law (Para 14)

Allegation that though Opposite party assured
Court that writ court order would be complied
with but subsequently he sought legal advice
to file Special Leave Petition against the said
order - which amounts to breach of the
undertaking given by opposite party in his
affidavit before and amounts to deliberate
disobedience of the order - Held - Merely
because respondent sought legal advice from
Chief Standing Counsel regarding feasibility of
filing S.L.P. against the writ court order it
cannot be said that there is a deliberate
disobediance of the said order (Para 14)

Dismissed. (E-5)

List of cases cited:

## Text

6 All. Dr. Satendra Prakash Rastogi Vs. Prashant Dwivedi, Prin. Secy. Medical Health &
Family Planni 1127
mistake committed by him and is
remorseful of his conduct to the society to
which he belongs and now he wants to
transform himself, I am of the considered
opinion that he should be given a chance
to reform himself and he be allowed to
give his better contribution to the society
to which he belongs.

18. Consequently, the sentence is
modified to the period already undergone
by the appellant in this case, i.e. two years
and five months under Section 3(1)X
SC/ST Act and the fine imposed by the
trial court is modified/reduced to Rs.
2000/-.

19. The appeal stands disposed of in
the above terms.

20. Office is directed to transmit a
copy of this order to the learned Sessions
Judge, Auraiya for compliance and
compliance report be submitted to this
Court also.

21. Office is also directed to send
back the record of the trial court
immediately.
----------
(2020)06ILR A1127
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.08.2017

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Contempt No. 1690 of 2017

Dr. Satendra Prakash Rastogi...Applicant
Versus
Prashant Dwivedi, Prin. Secy. Medical
Health & Family Planni ...Opposite Party

Counsel for the Applicant:
Jai Krishna Sinha

Counsel for the Opposite Party:
-----

Civil contempt - Contempt of Courts Act
(70 of 1971) - Section 12 - deliberate
disobedience - Merely seeking legal
advice to challenge writ court order
before superior forum - cannot be said to
be deliberate disobediance - every
litigant, including the State, has a right
to take recourse to the legal remedy
available to them under law (Para 14)

Allegation that though Opposite party assured
Court that writ court order would be complied
with but subsequently he sought legal advice
to file Special Leave Petition against the said
order - which amounts to breach of the
undertaking given by opposite party in his
affidavit before and amounts to deliberate
disobedience of the order - Held - Merely
because respondent sought legal advice from
Chief Standing Counsel regarding feasibility of
filing S.L.P. against the writ court order it
cannot be said that there is a deliberate
disobediance of the said order (Para 14)

Dismissed. (E-5)

List of cases cited:

1. Kapildeo Prasad Sah Vs St. of Bihar (1999)
7 SCC 569

2.
Sudhir
Vasudeva
Vs
M.
George
Ravishekaran (2014) 3 SCC 373

3. J.S. Parihar Vs Ganpat Duggar, (1996) 6
SCC 291

4. Chhotu Ram Vs Urvashi Gulati (2001) 7 SCC
530

(Delivered by Hon'ble Rakesh Srivastava, J.)

1. This contempt petition under
Section 12 of the Contempt of Courts Act,
1971 (for short 'the Act') has been filed
for
initiating
action
against
the
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents for wilful disobedience of the
order dated 09.05.2013, passed by this
Court in Writ Petition No. 1755 (S/B) of
2010, Dr. Satendra Prakash Rastogi v.
State of U.P.

2. Dr. Satendra Prakash Rastogi, the
applicant, was a Medical Officer in the
Medical and Health Department of the
State of Uttar Pradesh. By an order dated
03.10.2003 passed by the Principal
Secretary, Medical, Health and Family
Planning, U.P., Lucknow the applicant
was dismissed from service. The writ
petition bearing No. 1755 (S/B) of 2010
preferred by the applicant against the
order 03.10.2003 was partly allowed by
this Court vide its order dated 09.05.2013
in the following terms:-

"Accordingly, the writ petition is
allowed partly with regard to continuity of
service of the petitioner only. The impugned
order dated 03.10.2003 passed by the opposite
party no.1 (annexure no.1) is hereby, quashed.

Although, we are not inclined to
grant arrears of salary to the petitioner during
the period of unauthorized absence from duty,
but we direct that the petitioner shall be
reinstated in service w.e.f. 15.05.2013. It is
also directed that the disciplinary authority
shall proceed afresh from the stage of filing of
the reply to charge sheet and pass fresh order
after providing due opportunity of hearing to
the petitioner and in view of the observations
made above, conclude the fresh enquiry
within a period of six months from the date of
production of a certified copy of the present
order and communicate the same to the
petitioner.

No order as to costs."

3. The applicant filed a contempt
petition before this Court bearing Criminal
Misc. Case No. 2117 (C) of 2013 for initiating
action against Sri Pravir Kumar, the then
Principal Secretary, Medical, Health &
Family Welfare Department, Lucknow for
deliberate disobedience of the order dated
09.05.2013, mentioned above. In the said
contempt petition, Sri Pravir Kumar filed an
affidavit dated 29.10.2013 and brought on
record two orders bearing nos. 2744 and
3599. Both these orders were dated
28.10.2013, and had been passed by the State
of Uttar Pradesh in compliance of the order
dated 09.05.2013 passed by this Court. By
order no. 2744, the applicant was reinstated in
service. It was specifically mentioned in the
said order that the decision regarding payment
of salary to the applicant for the period of his
unauthorized absence from 08.01.1992 to
14.05.2013 would be taken after the decision
in the disciplinary enquiry pending against the
applicant. By order no. 3599, an Enquiry
Officer was appointed to hold an enquiry
against the applicant in terms of the order
passed by this Court. Since the order dated
09.05.2013
stood
complied
with,
the
contempt petition was dismissed by this Court
vide order dated 31.10.2013.

4. The disciplinary enquiry against the
applicant culminated in an order dated
25.05.2015,
whereby
three
annual
increments of the applicant with cumulative
effect were withheld. On 06.07.2017, after
more than two years since the passing of the
order dated 25.05.2015, the Director,
Medical & Health Services, wrote a letter to
the Chief Medical Officer, Bareilly and
Chief Medical Officer, Saharanpur asking
them to seek legal advice from the Chief
Standing Counsel regarding the feasibility
of filing a Special Leave Petition before the
Apex Court against the order dated
09.05.2013, in so far as it relates to the
grant of continuity in service to the
applicant for the period of his unauthorised
absence
from
duty.
6 All. Dr. Satendra Prakash Rastogi Vs. Prashant Dwivedi, Prin. Secy. Medical Health &
Family Planni 1129

5. Sri J.K. Sinha, learned counsel for
the applicant has submitted that in the
affidavit filed by Sri Pravir Kumar in
Criminal Misc. Case No. 2117 (C) of
2013 he had assured that the order dated
09.05.2013 would be complied with. The
counsel submits that the action on the part
of the respondent in not granting
continuity in service and now seeking
legal advice to file Special Leave Petition
against the said order is a breach of the
undertaking given by Sri Pravir Kumar in
his
affidavit
dated
29.10.2013
and
amounts to deliberate disobedience of the
order passed by this Court.

6. Section 2(b) of the Contempt of
Courts Act defines "civil contempt" as
wilful disobedience to any judgment,
decree, direction, order, writ or other
process of a court or wilful breach of
undertaking given to a court.

7. The contours of the power of the
Court so far as commission of civil
contempt
is
concerned
have
been
elaborated
upon
in
a
number
of
pronouncements of the Apex Court.
Reference may be made to the following
observations in Kapildeo Prasad Sah v.
State of Bihar, (1999) 7 SCC 569:

"9. For holding the respondents
to
have
committed
contempt,
civil
contempt at that, it has to be shown that
there has been wilful disobedience of the
judgment or order of the court. Power to
punish for contempt is to be resorted to
when there is clear violation of the court's
order. Since notice of contempt and
punishment for contempt is of farreaching consequence [and] these powers
should be invoked only when a clear case
of wilful disobedience of the court's order
has been made out. Whether disobedience
is wilful in a particular case depends on
the facts and circumstances of that case.
Judicial orders are to be properly
understood and complied with. Even
negligence and carelessness can amount
to disobedience particularly when the
attention of the person is drawn to the
court's orders and its implications."
(emphasis supplied)

8. In Sudhir Vasudeva v. M. George
Ravishekaran, (2014) 3 SCC 373, the
Apex Court held that the Courts must not:

"travel beyond the four corners
of the order which is alleged to have been
flouted or enter into questions that have
not been dealt with or decided in the
judgment or the order violation of which
is alleged. Only such directions which are
explicit in a judgment or order or are
plainly self-evident ought to be taken into
account for the purpose of consideration
as to whether there has been any
disobedience or wilful violation of the
same." (emphasis supplied)

9. In J.S. Parihar v. Ganpat
Duggar, (1996) 6 SCC 291, the Apex
Court in para 6 of the said report has held
as under:-

"6. ... It is seen that once there
is an order passed by the Government on
the basis of the directions issued by the
court, there arises a fresh cause of action
to seek redressal in an appropriate forum.
The preparation of the seniority list may
be wrong or may be right or may or may
not be in conformity with the directions.
But that would be a fresh cause of action
for the aggrieved party to avail of the
opportunity of judicial review. But that
cannot be considered to be the wilful
violation of the order. After re-exercising
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
the
judicial
review
in
contempt
proceedings, a fresh direction by the
learned Single Judge cannot be given to
redraw the seniority list. In other words,
the learned Judge was exercising the
jurisdiction to consider the matter on
merits in the contempt proceedings. It
would not be permissible under Section
12 of the Act. (emphasis supplied)

10. In Chhotu Ram v. Urvashi
Gulati, (2001) 7 SCC 530, the Apex
Court has held that the proceedings under
the contempt of Court Act are quasi
criminal and, as such, the breach has to be
established beyond all reasonable doubt.
The Apex Court held:

"2. As regards the burden and
standard of proof, the common legal
phraseology "he who asserts must prove"
has its due application in the matter of
proof of the allegations said to be
constituting the act of contempt. As
regards the "standard of proof", be it
noted that a proceeding under the
extraordinary jurisdiction of the court in
terms of the provisions of the Contempt of
Courts Act is quasi-criminal, and as such,
the standard of proof required is that of a
criminal proceeding and the breach shall
have to be established beyond all
reasonable
doubt."
(emphasis supplied)

11. In the case at hand, in pursuance
of the order dated 09.05.2013 passed by
this Court, the applicant was reinstated in
service and a fresh enquiry was conducted
against the petitioner from the stage of
filing of the reply to the charge sheet as
directed by this Court. The contempt
petition filed by the applicant earlier for
initiating contempt proceedings against
the applicant for disobedience of the order
dated 09.05.2013 was dismissed by this
Court holding that the said order stood
complied with. It is not in dispute that on
the basis of the enquiry report, by an
order dated 25.05.2015, three increments
with cumulative effect of the applicant
have been withheld. The order dated
25.05.2015 is not on record. The
averment, as to whether or not the said
order has been put to challenge is
conspicuously missing in the contempt
application.

12. In order to appreciate the first
part of the submission of the learned
counsel for the applicant, it would be
imperative to reproduce the contents of
the affidavit filed by Sri Pravir Kumar in
Criminal Misc. Case No. 2117 (C) of
2013 in extenso. The affidavit reads as
under:

"1. That the deponent himself is
the Opp. party no. 1 in the above noted
case he is fully conversant with the facts
of the case and circumstances, of the case
as deposed hereinunder.

2. That before making any
submission before this Hon'ble Court the
deponent
tenders
unconditional
and
unqualified apology before this Hon'ble
Court if this Hon'ble Court if this Hon'ble
Court finds any contempt from any
conduct of the depondent. The deponent
is a law-abiding citizen and a responsible
govt officer, he always obey the order
passed by this on Hon'ble Court.

3. That the present contempt
petition has been filed for the alleged
non-compliance of the order dated 09-052013 passed in W.P. No. 1755 (S/B) of
2010, Dr. Satendra Prakash Rastogi Vs.
State of U.P. & others. The operative
portion of the order is quoted here in
under:-
6 All. Abhishek Sharma Vs. State of U.P. & Ors. 1131

"Although, we are not inclined
to grant arrears of salary to the petitioner
during the period of unauthorized absence
from duty, but we direct that the
petitioner shall be reinstated in service
w.e.f. 15.05.2013. It is also directed that
the disciplinary authority shall proceed
afresh from the stage of filing of the reply
to charge sheet and pass fresh order after
providing due opportunity of hearing to
the petitioner and in view of the
observations made above, conclude the
fresh enquiry within a period of six
months from the date of production of a
certified copy of the present order and
communicate the same to the petitioner."

4. That in compliance of the
order dated 09.05.2013, two orders dated
28.10.2013 have been passed by the
Deponent. The copy of the orders dated
28.10.2013 are being addressed herewith
as Annexure No. CA-1 & Annexure No.
CA-2.

5. That the delay in the matter is
neither deliberate nor intentional as some
time
was
consumed
in
official
correspondence
in
the
matter
and
obtaining approvals of the competent
authority and as such the same is liable to
be condoned by this Hon'ble Court.

6. That in the above noted
circumstances the order passed by this
Hon'ble Court has been fully complied
with and it is necessary in the interest of
justice that the notice may kindly be
discharged and Contempt petition may be
dismissed."

13. From a perusal of the affidavit
extracted above, it is apparent that there is
no such undertaking as alleged by the
counsel for the applicant and as such
there is no question of any breach of any
undertaking on the part of the respondent.

14. In so far as the second limb of
the submission of the learned counsel for
the applicant, relating to the legal advice
sought for approaching the Apex Court, is
concerned, every litigant, including the
State, has a right to take recourse to the
legal remedy available to them under law.
Merely because the respondent has sought
legal advice from the Chief Standing
Counsel regarding the feasibility of filing
a Special Leave Petition against the order
dated 09.05.2013 passed by this Court, it
cannot be said that there is a deliberate
disobediance of the said order.

15. On merit, this Court is of the
opinion that no case of civil contempt is
made out. Besides, it is also clear that the
prayer is also barred by limitation. A
limitation period of one year is provided
under Section 20 of the Contempt of
Courts Act. The application is hopelessly
barred by limitation and is liable to be
dismissed as such.

16. The contempt petition is devoid
of merit and is accordingly dismissed.
----------

(2020)06ILR A1131
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.02.2020

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Misc. Single No. 2810 of 2020

Abhishek Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mohd Ateeq Khan