# Rafiq Ahamad v. Jalil Ahmad & Anr

- **Citation:** (2023) 1 ILRA 1193
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-16
- **Case number:** Special Appeal. No. 16 of 2023
- **Bench:** Ramesh Sinha, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rafiq-ahamad-v-jalil-ahmad-anr-49574
- **Pages:** 7

## Headnote

A. Civil Law - Contempt Jurisdiction - Civil
Procedure Code, 1908 - Order VI Rule 17 -
The
court
cannot,
in
the
guise
of
exercising contempt jurisdiction, grant
substantive relief not covered by the order
which is subject matter of the proceedings
and that a substantive relief not covered
by
the
initial
order
could
not
be
considered in contempt proceedings. The
directions issued by the contempt judge which
virtually
amounts
to
supplementing
the
directions contained in the original order is
beyond
jurisdiction
and
cannot
be
countenanced. (Para 6, 7)

The primary contention of the appellant is that
the direction of the Writ Court, while dismissing
the application filed by the appellant u/s 482
Cr.P.C.,
was
to
proceed
with
the
trial
expeditiously and decide the same, without
accommodating request for adjournment made
either on behalf of plaintiff or defendant within
a period of one year, but the Contempt Court,
while adjudicating the contempt application filed
by the appellant, has gone beyond the
directions of the Writ Court and erred in
observing that in case any adjournment is given
under compelling circumstances, then, the same
shall not be granted without heavy cost.
Therefore, the same is liable to be set-aside.
(Para 5)

As per the aforesaid proposition of law and the
facts and circumstances of the instant case, the
directions issued by the Contempt Judge while
passing the impugned order to the extent that
'in case any adjournment is given under
compelling circumstances, then the same shall
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
not be granted without heavy cost.', are virtually
amounted to supplementing the directions
contained in the original order passed by the
Writ Court, which is beyond jurisdiction of the
Contempt Court. (Para 8)

Aforesaid direction set aside. Appeal
disposed of. (E-4)

Precedent followed:

## Text

1 All. Rafiq Ahamad Vs. Jalil Ahmad & Anr.
1193
involved in the case. The appellant claims
that he had been duly selected and
appointed, but he has not filed a copy of the
appointment
letter
or
a
contract
of
appointment
from which
his
service
conditions may be ascertained. The college
has contended neither any advertisement
had been issued nor any selection was held
and on a personal request made by the
appellant, he had been orally engaged to
work and after he had worked merely for
about 4 months, he misbehaved with the
Principal of the college and the Principal
had filed a First Information Report against
him on 31.03.1992. The appellant did not
perform
his
duties
since
thereafter.
Whether or not the appellant was duly
selected and appointed, and what were his
service conditions, are facts which are in
dispute and regarding which no material is
available on record. For this reason also,
the
Writ
Petition
would
not
be
maintainable.

29- In view of the aforesaid
discussion, we find ourselves in agreement
with the view taken by the Hon'ble Single
Judge that the Writ Petition filed by the
appellant was not maintainable and we do
not find any reason to interfere in the
Judgment of the Hon'ble Single Judge.

30- The Special Appeal lacks merits
and, accordingly, it is dismissed.

31- However, there will be no order
as to costs.
----------
(2023) 1 ILRA 1193
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.01.2023

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Special Appeal. No. 16 of 2023

Rafiq Ahamad ...Appellant
Versus
Jalil Ahmad & Anr. ...Respondents

Counsel for the Appellant:
Sri Gyanendra Singh

Counsel for the Respondents:

A. Civil Law - Contempt Jurisdiction - Civil
Procedure Code, 1908 - Order VI Rule 17 -
The
court
cannot,
in
the
guise
of
exercising contempt jurisdiction, grant
substantive relief not covered by the order
which is subject matter of the proceedings
and that a substantive relief not covered
by
the
initial
order
could
not
be
considered in contempt proceedings. The
directions issued by the contempt judge which
virtually
amounts
to
supplementing
the
directions contained in the original order is
beyond
jurisdiction
and
cannot
be
countenanced. (Para 6, 7)

The primary contention of the appellant is that
the direction of the Writ Court, while dismissing
the application filed by the appellant u/s 482
Cr.P.C.,
was
to
proceed
with
the
trial
expeditiously and decide the same, without
accommodating request for adjournment made
either on behalf of plaintiff or defendant within
a period of one year, but the Contempt Court,
while adjudicating the contempt application filed
by the appellant, has gone beyond the
directions of the Writ Court and erred in
observing that in case any adjournment is given
under compelling circumstances, then, the same
shall not be granted without heavy cost.
Therefore, the same is liable to be set-aside.
(Para 5)

As per the aforesaid proposition of law and the
facts and circumstances of the instant case, the
directions issued by the Contempt Judge while
passing the impugned order to the extent that
'in case any adjournment is given under
compelling circumstances, then the same shall
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
not be granted without heavy cost.', are virtually
amounted to supplementing the directions
contained in the original order passed by the
Writ Court, which is beyond jurisdiction of the
Contempt Court. (Para 8)

Aforesaid direction set aside. Appeal
disposed of. (E-4)

Precedent followed:

1. Jhareshwar Prasad Paul & anr. Vs Tarak Nath
Ganguly & ors., (2002) 5 SCC 352 (Para 6)

2. Sudhir Vasudeva, Chairman & Managing
Director, Oil and Natural Gas Corporation & ors.
Vs M. Goerge Ravishekaran & ors., (2014) 3 SCC
373 (Para 7)

Present
special
appeal
assails
the
judgment and order dated 13.12.2022
passed by the learned Single Judge in
Contempt Application (Civil) No. 2857 of
2022.

(Delivered by Hon'ble Ramesh Sinha, J.)

(1) This intra Court appeal has been
filed by the appellant, Rafiq Ahamad,
questioning the legality of the judgment
and order dated 13.12.2022 passed by the
learned
Single
Judge
in
Contempt
Application (Civil) No. 2857 of 2022,
whereby the

"... In case, any adjournment is
given under compelling circumstances,
then, the same shall not be granted without
heavy cost."

(2) The genesis of the aforesaid
contempt application is a judgment and
order
dated
13.07.2022
passed
in
Application U/S 482 No. 3369 of 2022 :
Rafiq Ahamad Vs. State of U.P. and others.
The operative portion of the said judgment
and order dated 13.07.2022 is required to
be noticed and is set-out here-in-below:-

"9.
This
Court
is
of
the
considered view that two orders, impugned
in the present application, do not suffer
from any illegality or perversity, which
requires interference by this Court in extraordinary jurisdiction under Section 482
Cr.P.C. In view thereof, the present
application is dismissed. However, the
learned trial Court should proceed with the
trial expeditiously and, decide the same,
without
accommodating
request
for
adjournment made either on behalf of
plaintiff or defendant,, say within a period
of one year from the date certified copy of
this order is served/submitted as the
plaintiffs are enjoying the temporary
injunction.

(3) A bare perusal of the operative
portion of the said judgment and order
dated 13.07.2022, clearly reveals that there
was a mandatory direction upon the learned
trial Court (being the respondent no.2
before us) to proceed with the trial
expeditiously and decide the same without
accommodating request for adjournment
made either on behalf of plaintiff or
defendant, within a period of one year from
the date certified copy of the order is
served/submitted.

(4) It appears that the aforesaid
judgment and order dated 13.07.2022 was
placed before the respondent no.2 on
19.07.2022. Thereafter, on 27.07.2022, the
respondent no.2 had framed two issues,
bearing issue nos. 6 and 7 regarding
valuation of suit and Court, as preliminary
issues,
which
were
decided
by
the
respondent
no.2
vide
order
dated
19.09.2022. Thereafter, on 27.09.2022, the
respondent no.1 preferred an amendment
application under Order VI Rule 17 of the
Code of Civil Procedure to add some new
contents regarding Court fees, which was
1 All. Rafiq Ahamad Vs. Jalil Ahmad & Anr.
1195
rejected by the respondent no.2 vide order
dated
30.09.2022.
Feeling
aggrieved,
respondent no.1 had preferred a revision
before the District Judge, Pratapgarh,
which was dismissed by the District Judge,
Pratapgarh vide order dated 09.11.2022.
The
learned
Contempt
Judge,
after
appreciating the facts that due to pendency
of the revision, the respondent no.2 had not
proceeded with the suit and after dismissal
of the revision, suit was listed on
11.11.2022, 17.11.2022 and 24.11.2022
and after applying mind, the respondent
no.2 had passed on every date and the suit
has been listed for 14.12.2022, dismissed
the contempt application vide order dated
13.12.2022 and further observed that it was
expected to the Civil Judge (Senior
Division), Pratapgarh to decide the suit in
question, expeditiously, without giving
unnecessary adjournment to either of the
parties and in case any adjournment is
given under compelling circumstances,
then, the same shall not be granted without
heavy cost.

(5) The primary contention of the learned
counsel for the appellant is that the direction of
the Writ Court, while dismissing the application
filed by the appellant under Section 482
Cr.P.C., was to proceed with the trial
expeditiously and decide the same, without
accommodating request for adjournment made
either on behalf of plaintiff or defendant within
a period of one year, but the Contempt Court,
while adjudicating the contempt application
filed by the appellant, has gone beyond the
directions of the Writ Court and erred in
observing that in case any adjournment is given
under compelling circumstances, then, the same
shall not be granted without heavy cost.
Therefore, the same is liable to be set-aside.

(6) Having heard learned Counsel for
the appellant and gone through the
impugned judgment as well as material
brought on record, it is required to be
noticed here that the basic parameters
governing
the
exercise
of
contempt
jurisdiction were examined in Jhareswar
Prasad Paul and another vs. Tarak Nath
Ganguly and others : (2002) 5 SCC 352
by the Apex Court and it was held that the
court cannot, in the guise of exercising
contempt jurisdiction, grant substantive
relief not covered by the order which is
subject matter of the proceedings and that a
substantive relief not covered by the initial
order could not be considered in contempt
proceedings. In this case also, the contempt
court had proceeded on the basis of the
allegation that the respondent authorities
had not complied with the initial order,
"effectively" and "in appropriate manner".
In
the
aforesaid
background,
the
observations made in the judgment are as
follows :-

"11. The purpose of contempt
jurisdiction is to uphold the majesty and
dignity of the courts of law, since the
respect and authority commanded by the
courts of law are the greatest guarantee to
an ordinary citizen and the democratic
fabric of society will suffer if respect for
the judiciary is undermined. The Contempt
of Courts Act, 1971 has been introduced
under the statute for the purpose of
securing the feeling of confidence of the
people in general for true and proper
administration of justice in the country. The
power to punish for contempt of court is a
special power vested under the Constitution
in the courts of record and also under the
statute. The power is special and needs to
be exercised with care and caution. It
should be used sparingly by the courts on
being satisfied regarding the true effect of
contemptuous conduct. It is to be kept in
mind
that
the
court
exercising
the
1196 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction to punish for contempt does not
function as an original or appellate court
for determination of the disputes between
the parties. The contempt jurisdiction
should be confined to the question whether
there has been any deliberate disobedience
of the order of the court and if the conduct
of the party who is alleged to have
committed
such
disobedience
is
contumacious.
The
court
exercising
contempt jurisdiction is not entitled to enter
into questions which have not been dealt
with and decided in the judgment or order,
violation of which is alleged by the
applicant. The court has to consider the
direction issued in the judgment or order
and not to consider the question as to what
the judgment or order should have
contained. At the cost of repetition, be it
stated here that the court exercising
contempt
jurisdiction
is
primarily
concerned
with
the
question
of
contumacious conduct of the party, which
is alleged to have committed deliberate
default in complying with the directions in
the judgment or order. If the judgment or
order does not contain any specific
direction regarding a matter or if there is
any ambiguity in the directions issued
therein then it will be better to direct the
parties to approach the court which
disposed of the matter for clarification of
the order instead of the court exercising
contempt jurisdiction taking upon itself the
power to decide the original proceeding in
a manner not dealt with by the court
passing the judgment or order. If this
limitation is borne in mind then criticisms
which are sometimes levelled against the
courts
exercising
contempt
of
court
jurisdiction "that it has exceeded its powers
in granting substantive relief and issuing a
direction regarding the same without proper
adjudication of the dispute" in its entirety
can be avoided. This will also avoid
multiplicity of proceedings because the
party which is prejudicially affected by the
judgment or order passed in the contempt
proceeding and granting relief and issuing
fresh directions is likely to challenge that
order and that may give rise to another
round
of
litigation
arising
from
a
proceeding which is intended to maintain
the majesty and image of courts.

12. Judging the case in hand on
the touchstone of the principles noted
above, we find that the directions issued by
the Division Bench in the impugned
judgment in effect granted substantive
reliefs not covered by the judgment/order
passed in the original proceeding. In the
judgment, no direction was issued by the
High Court that the writ petitioners will be
admitted to the cadre of Upper Division
Clerks/Assistants in the Directorate. As
noted earlier, they have all along been
holding the posts of Clerk-cum-Cash
Collector which are ex cadre posts. Entry
of such persons into the cadre of Upper
Division Clerks/Assistants has to be
considered taking into account various
aspects of the matter. It is one thing to say
that the benefits under the government
order may be extended to the writ
petitioners also and extending benefits of
the government order to the writ petitioners
is one thing and directing their entry into
the existing cadre of Office Assistants is a
different thing. Such a dispute can only be
determined on consideration of all relevant
aspects of the matter and cannot be and
should not be ordered in the summary
proceeding for taking action for contempt
of court. If the High Court felt that the
grievance of the writ petitioners relating to
the question of their entry into the cadre of
Upper Division Clerks/Assistants has not
been dealt with by the Court and specific
direction has not been issued while
1 All. Rafiq Ahamad Vs. Jalil Ahmad & Anr.
1197
disposing of the writ petitions/appeals then
the appropriate course was to leave it to the
parties (writ petitioners) to agitate the
matter before the competent forum. Further
the question of entry of holders of ex cadre
posts, like the writ petitioners, into an
existing cadre is a matter of policy which
the Government has to decide. Be it noted
here that on consideration of the matter the
High Court held that no action for contempt
of court need be taken against the
respondents in the writ petition for
deliberate disobedience of the judgment or
order passed by the High Court. Thereafter
it was not open to the court to pass any
order granting substantive relief to the
applicants (writ petitioners) on the plea that
the question raised was also a part of their
grievance in the writ petition.

13.
In
the
facts
and
circumstances of the case, we are
constrained
to
hold
that
the
judgment/order passed by the High Court
was without jurisdiction. In the result, the
appeals are allowed. The judgment/order
under challenge is set aside. The petition
filed by the writ petitioners for taking
action for contempt of court against the
respondents is dismissed."

(7) The question as to whether a
Court exercising contempt jurisdiction
could pass supplementary order to the main
order passed in the writ petition was taken
up in the case of Sudhir Vasudeva,
Chairman and Managing Director, Oil
and Natural Gas Corporation and others
Vs. M.George Ravishekaran and others :
(2014) 3 SCC 373 by the Apex Court and it
was held that the directions issued by the
contempt judge which virtually amounted
to supplementing the directions contained
in
the
original
order
was
beyond
jurisdiction and could not be countenanced.
The observations made in the judgment are
as follows :-

"19.The power vested in the High
Courts as well as this Court to punish for
contempt is a special and rare power
available both under the Constitution as
well as the Contempt of Courts Act, 1971.
It is a drastic power which, if misdirected,
could even curb the liberty of the individual
charged with commission of contempt. The
very nature of the power casts a sacred duty
in the Courts to exercise the same with the
greatest of care and caution. This is also
necessary
as,
more
often
than
not,
adjudication of a contempt plea involves a
process of self-determination of the sweep,
meaning and effect of the order in respect
of which disobedience is alleged. The
Courts must not, therefore, 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. Decided issues cannot be reopened;
nor can the plea of equities be considered.
The Courts must also ensure that while
considering a contempt plea the power
available to the Court in other corrective
jurisdictions like review or appeal is not
trenched upon. No order or direction
supplemental to what has been already
expressed should be issued by the Court
while exercising jurisdiction in the domain
of the contempt law; such an exercise is
more appropriate in other jurisdictions
vested in the Court, as noticed above. The
above principles would appear to be the
cumulative outcome of the precedents cited
1198 INDIAN LAW REPORTS ALLAHABAD SERIES
at the Bar, namely, Jhareswar Prasad
Paul v. Tarak Nath Ganguly [(2002) 5 SCC
352, V.M. Manohar Prasad v. N.Ratnam
Raju [(2004) 13 SCC 610], Bihar Finance
Service House Construction Coop. Society
Ltd. v. Gautam Goswami [(2008) 5 SCC
339]
and Union
of
India v. Subedar
Devassy PV[(2006) 1 SCC 613].

20. Applying the above settled
principles to the case before us, it is clear
that the direction of the High Court for
creation of supernumerary posts of Marine
Assistant
Radio
Operator
cannot
be
countenanced. Not only the courts must act
with utmost restraint before compelling the
executive to create additional posts, the
impugned direction virtually amounts to
supplementing the directions contained in
the order of the High Court dated 2-82006...the
direction
to
create
supernumerary posts at the stage of
exercise of the contempt jurisdiction has to
be understood to be an addition to the
initial order passed in the writ petition. The
argument that such a direction is implicit in
the order dated 2-8-2006 [M. George
Ravishekeran v. ONGC Ltd., WP No.
21518 of 2000, order dated 2-8-2006
(Mad)] is self-defeating. Neither is such a
course of action open to balance the
equities
i.e.
not
to
foreclose
the
promotional avenues of the petitioners, as
vehemently urged by Shri Rao. The issue is
one of jurisdiction and not of justification.
Whether the direction issued would be
justified by way of review or in exercise of
any other jurisdiction is an aspect that does
not concern us in the present case. Of
relevance is the fact that an alternative
direction had been issued by the High
Court by its order dated 2-8-2006 [M.
George Ravishekeran v. ONGC Ltd., WP
No. 21518 of 2000, order dated 2-8-2006
(Mad)] and the appellants, as officers of the
Corporation, have complied with the same.
They cannot be, therefore, understood to
have acted in wilful disobedience of the
said order of the Court. All that was
required in terms of the second direction
having been
complied
with by
the
appellants, we are of the view that the order
dated 2-8-2006 passed in M. George
Ravishekeran v. ONGC Ltd. [M. George
Ravishekeran v. ONGC Ltd., WP No.
21518 of 2000, order dated 2-8-2006
(Mad)]
stands
duly
implemented.
Consequently, we set aside the order dated
19-1-2012 passed in Contempt Petition No.
161 of 2010, as well as the impugned order
dated
11-7-2012
passed
in
Sudhir
Vasudeva v. M. George Ravi Shekeran
[Contempt Appeal No. 2 of 2012, decided
on 11-7-2012 (Mad)] and allow the present
appeal."

(8) Taking into consideration the
aforesaid
proposition of
law
and
also
considering the facts and circumstances of the
instant case, we are of the view that the
directions issued by the Contempt Judge while
passing the impugned order to the extent that ''in
case
any
adjournment
is
given
under
compelling circumstances, then the same shall
not be granted without heavy cost.', are virtually
amounted to supplementing the directions
contained in the original order passed by the
Writ Court, which is beyond jurisdiction of the
Contempt Court.

(9) We, therefore, set-aside the direction
contained in last paragraph of the impugned
judgment and order dated 13.12.2022 i.e. ''in
case, any adjournment is given under
compelling circumstances, then the same shall
not be granted without heavy cost.'

(10) With the aforesaid direction, the
instant intra Court appeal stands disposed
of, accordingly.
1 All. Smt. Archana Paliwal Vs. State of U.P. & Ors.
1199
---------
(2023) 1 ILRA 1199
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Special Appeal No. 101 of 2022

Smt. Archana Paliwal ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Jai Prakash Prasad

Counsel for the Respondents:
C.S.C.

A. Service Law - Voluntary Retirement - U.P.
Fundamental Rule 56 - Clause (d) of Rule 56
prescribes the notice period as three months
but, by clause (ii) of the Proviso to clause
(d) of Rule 56, the appointing authority is
empowered to allow a Government servant
to retire without any notice or by a shorter
notice without requiring him/ she/it to pay
any penalty in lieu of notice. The appointing
authority could allow a Government servant to
retire voluntarily even if the notice period is shorter
than three months albeit subject to fulfillment of
other conditions enabling exercise of the right to
seek voluntary retirement. (Para 9)

In the instant case, application was submitted
on 06.04.2008 and voluntary retirement was
sought from 30.06.2018. Admittedly, the notice
period was less than three months therefore,
the appointing authority was required to accept
the request to allow the petitioner to retire.
Notably, the Rule does not prescribe the
time limit for acceptance of the retirement
notice. (Para 10)

In the present circumstances, the issue
whether acceptance was required before
30.06.2018 would have to be addressed
on the same principles which govern
acceptance of an offer, that is, whether
there
was
any
indication
from
the
petitioner that the offer to retire was
acceptable up to 30.06.2018 and not later.
The affidavit, dated 06.04.2018, filed by
the appellant along with the voluntary
retirement application/notice spells out
an
unqualified
offer/desire
to
retire
without specifying a date by which it
should be accepted. There is no indication
either in the application or in the affidavit that if
the offer is not accepted by a certain period it
be treated as withdrawn. Thus, the notice
seeking
voluntary
retirement
extended
a
standing offer to retire with effect from
30.06.2018 which could have been accepted by
the appointing authority till such time it was
withdrawn with the permission of the appointing
authority as per the provisions of the second
proviso to clause (ii) of Rule 56 (d) of the
Fundamental Rules. (Para 10)

B. As by the second proviso to clause (ii) of
Rules 56 (d) of the Fundamental Rule a
voluntary retirement notice cannot be
withdrawn save with the permission of
the appointing authority, there can be no
implied withdrawal of the notice by
rendering
service
beyond
30.06.2018
simply for the reason that the notice
period was less than three months, hence
an acceptance of the offer was required to
terminate
the
employer-employee
relationship. Till such time that relationship
subsisted, the incumbent was obliged to serve
the employer and, therefore, taking such service
would not amount to waiver of employer's right
to accept the standing offer. For the reasons
above, we are of the considered view that there
existed no legal impediment for the
appointing
authority
to
accept
the
voluntary retirement notice after the date
from which retirement was sought. (Para
10)

The learned Single Judge has clarified in its
order that any salary for the subsequent period,
if paid to the petitioner, shall not be recovered/
withdrawn from her and, further, the authority
shall ensure that retiral benefits are released to
the
petitioner
by
treating
her
to
have