# Shiv Lal No.3/ v. Ram Babu Dwivedi

- **Citation:** (2006) 1 ILRA 439
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-09
- **Case number:** Civil Misc. Contempt Appeal No.25 of 2004
- **Bench:** V.M. Sahai, Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-lal-no-3-v-ram-babu-dwivedi-40755
- **Pages:** 18

## Headnote

(A) Contempt of Courts Act-1972-Section
12-Civil Contempt-willful disobedience of
interim Orders-about reinstatement and
the arrears of salary-delay caused due to
Transfer and posting of the executive
officer
of
the
concerned
Nagar
Panchayat-held-can not be said to be
willful defiance-unconditional apology
can not be refused.

Held: Para 30

Thus in given facts and circumstances of
the case, we are of the considered
opinion that the delayed compliance of
order passed by writ court as well as
contempt court referred earlier cannot
be said to be wilful defiance and
disobedience of the interim order either
passed by writ court or order dated
18.9.2004 passed by contempt court and
the appellant cannot be held guilty of
committing any contempt punishable
under the provisions of Contempt of
Court Act. Besides this, in the affidavit
filed in the appeal, the appellant has also
tendered his unconditional apology as it
was tendered before the learned Single
Judge
dealing
with
the
contempt
application.
In
given
facts
and
circumstances of the case we do not find
any justification to reject the same
accordingly the unconditional apology
tendered by the appellant is hereby
accepted.

(B) Constitution of India Art. 141Binding
precedence-longer
Bench
of
Supreme Court in Mohd. Yakoob Khan's
440 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
case-taken view so long the stay vacate
application in pending writ petition
finally decided-the contempt proceeding
is premature-while the relevant smaller
Bench of the Apex Court taken otherwise
view-held-even
if
smaller
Bench
considered the earlier larger Bench
decision-can
not
be
construed
at
variance with larger Bench decision.

Held: Para 20

Thus in view of law laid down by the
Hon'ble
Apex
Court
we
have
no
hesitation to hold that law laid down by
earlier larger Bench of Hon'ble Apex
Court will prevail over the later smaller
Bench decision of the Hon'ble Apex
Court, even if later smaller Bench of
Hon'ble
Apex
Court
considered
the
earlier larger Bench decision the same
cannot be construed at variance with the
larger Bench decision.

(C) Contempt of Court Act 1972-Section
12-Civil contempt-Order of punishmentwithout framing the charges-without
affording an opportunity of fair hearingheld-Order can not sustained.

Held: Para 26

Therefore, it was necessary for learned
single Judge to frame specific charge
against the appellant and intimate him
asking his reply thereon and after
affording him opportunity of fair hearing,
if he would have been found guilty of
committing
contempt
for
wilful
disobedience of the order passed by this
court only in that eventuality any order
punishing
the
appellant
could
be
justified. But from the perusal of the
records, it is clear that on 6th October
2004 the appellant was impleaded as
opposite party no. 3 in the contempt
application for the first time at the
instance of respondent herein through
an Impleadment application. There upon
only notice was issued to the appellant
directing him to appear in person before
the court on 3.11.2004. On that day also
neither any specific charge either of noncompliance of the order was framed nor
any
charge
regarding
delayed
compliance of the order passed by such
courts has been framed and served upon
the appellant nor he was asked to reply
any such charge rather learned Single
Judge has straightway assumed the facts
stated in the affidavit filed in support of
Impleadment application as correct and
held the appellant guilty of committing
contempt of this court. This approach of
learned single Judge in our considered
opinion, does not satisfy requirement of
law and falls short of it, therefore held to
be erroneous and contrary to law.
Accordingly the impugned order passed
by
learned
Single
Judge
is
not
sustainable in the eye of law and liable
to be set aside.
Case law discussed:
1992 (2) UPLBEC-1166
1995 (Suppl) (4) SCC-465
1998 (8) SCC-640
2002 (1) SCC-766
1989 (4) SCC-418
1976 (3) SCC-6

## Text

_Characters 0–39,942 of 60,107. This is a partial read: ask again with offset=39942 for what follows._

1 All] Seema Mourya V. State of U.P. and others
439
to take a chance of being denied
admission on the basis of her actual
marksheet as she had actually obtained
much lesser marks on which basis she
may or may not have been selected for
admission in the B.T.C. course but she
knew that on the basis of the fabricated
marksheet she would be assured of
admission.

7. As such, in the aforesaid
circumstances the petitioner would not be
entitled to any indulgence by this Court,
specially in its discretionary jurisdiction
under Article 226 of the Constitution of
India. For a petitioner to be entitled to the
relief under this jurisdiction, she is not
only expected to show that law is in her
favour but that equity is also in her
favour. In the present case, may be the
petitioner would be entitled to admission
on the basis of her correct marksheet but
in the present case, equity being totally
against
her,
as
she
had
initially
approached the authorities for admission
on the basis of forged and fabricated
marksheet and giving wrong declaration,
she would not be entitled to any relief.

Accordingly, this writ petition is
dismissed. No order as to cost.
Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2006

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Contempt Appeal No.25 of
2004

Shiv Lal ...Respondent No.3/Applicant
Versus
Ram Babu Dwivedi
...Opposite party

Counsel for the Appellant:
Sri Umesh Narain Sharma
Sri Anil Kumar Bajpai

Counsel for the Opposite Party:
Sri D.S. Srivastava
Sri H.R. Misra
A.G.A.

(A) Contempt of Courts Act-1972-Section
12-Civil Contempt-willful disobedience of
interim Orders-about reinstatement and
the arrears of salary-delay caused due to
Transfer and posting of the executive
officer
of
the
concerned
Nagar
Panchayat-held-can not be said to be
willful defiance-unconditional apology
can not be refused.

Held: Para 30

Thus in given facts and circumstances of
the case, we are of the considered
opinion that the delayed compliance of
order passed by writ court as well as
contempt court referred earlier cannot
be said to be wilful defiance and
disobedience of the interim order either
passed by writ court or order dated
18.9.2004 passed by contempt court and
the appellant cannot be held guilty of
committing any contempt punishable
under the provisions of Contempt of
Court Act. Besides this, in the affidavit
filed in the appeal, the appellant has also
tendered his unconditional apology as it
was tendered before the learned Single
Judge
dealing
with
the
contempt
application.
In
given
facts
and
circumstances of the case we do not find
any justification to reject the same
accordingly the unconditional apology
tendered by the appellant is hereby
accepted.

(B) Constitution of India Art. 141Binding
precedence-longer
Bench
of
Supreme Court in Mohd. Yakoob Khan's
440 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
case-taken view so long the stay vacate
application in pending writ petition
finally decided-the contempt proceeding
is premature-while the relevant smaller
Bench of the Apex Court taken otherwise
view-held-even
if
smaller
Bench
considered the earlier larger Bench
decision-can
not
be
construed
at
variance with larger Bench decision.

Held: Para 20

Thus in view of law laid down by the
Hon'ble
Apex
Court
we
have
no
hesitation to hold that law laid down by
earlier larger Bench of Hon'ble Apex
Court will prevail over the later smaller
Bench decision of the Hon'ble Apex
Court, even if later smaller Bench of
Hon'ble
Apex
Court
considered
the
earlier larger Bench decision the same
cannot be construed at variance with the
larger Bench decision.

(C) Contempt of Court Act 1972-Section
12-Civil contempt-Order of punishmentwithout framing the charges-without
affording an opportunity of fair hearingheld-Order can not sustained.

Held: Para 26

Therefore, it was necessary for learned
single Judge to frame specific charge
against the appellant and intimate him
asking his reply thereon and after
affording him opportunity of fair hearing,
if he would have been found guilty of
committing
contempt
for
wilful
disobedience of the order passed by this
court only in that eventuality any order
punishing
the
appellant
could
be
justified. But from the perusal of the
records, it is clear that on 6th October
2004 the appellant was impleaded as
opposite party no. 3 in the contempt
application for the first time at the
instance of respondent herein through
an Impleadment application. There upon
only notice was issued to the appellant
directing him to appear in person before
the court on 3.11.2004. On that day also
neither any specific charge either of noncompliance of the order was framed nor
any
charge
regarding
delayed
compliance of the order passed by such
courts has been framed and served upon
the appellant nor he was asked to reply
any such charge rather learned Single
Judge has straightway assumed the facts
stated in the affidavit filed in support of
Impleadment application as correct and
held the appellant guilty of committing
contempt of this court. This approach of
learned single Judge in our considered
opinion, does not satisfy requirement of
law and falls short of it, therefore held to
be erroneous and contrary to law.
Accordingly the impugned order passed
by
learned
Single
Judge
is
not
sustainable in the eye of law and liable
to be set aside.
Case law discussed:
1992 (2) UPLBEC-1166
1995 (Suppl) (4) SCC-465
1998 (8) SCC-640
2002 (1) SCC-766
1989 (4) SCC-418
1976 (3) SCC-677
1985 (Suppl) SCC-280
AIR 1974 Mad. 313
AIR 1936 PC-141
AIR 1959 SC-186
AIR 1936 P.C.-141
AIR 1954 SC-186
AIR 1956 Cal.-484
1922-1 Q.B.-95
AIR 1960 Alld. 231

(Delivered by Hon'ble Sabhajeet Yadav,J)

1. This appeal is directed against the
judgment and order of conviction and
sentence dated 3.11.2004 passed by the
learned Single Judge of this Court in
Contempt Petition No. 2101 of 2004 Ram
Babu Dwivedi Vs. Smt. Rama Devi and
others under the contempt of Courts Act
whereby the Appellant is convicted and
sentenced for a period of 15 days
imprisonment with fine of Rs.1000/- and
in failure to deposit the aforesaid amount
of fine the appellant is further directed to
1 All] Shiv Lal V. Ram Babu Dwivedi
441
under go imprisonment for a period of
one week.

2. The facts of the case in brief are
that the opposite party was working as
Tax Moharrir cum clerk in the Nagar
Panchayat Kabrai District Mahoba. He
was placed under suspension by an order
dated 28.2.2003. The aforesaid order was
challenged by him in writ petition
No.14661 of 2003. Vide order dated
4.4.2003 passed by writ court the
aforesaid order has been stayed. The
interim
order
dated
4.4.2003
is
reproduced as under:

"In view of the aforesaid submission
it is hereby directed that the operation of
the order passed by the respondent no.5
dated 28.2.2003 (Annexure 1 of the writ
petition) shall remain stayed and the
petitioner will not be treated under
suspension till the next date of listing.
However, it is made clear that enquiry
against the petitioner shall go on to which
the petitioner undertakes to cooperate
which will be taken to its logical end."

3. It is alleged that this interim order
was duly served on the opposite parties of
the writ petition but they failed to comply
with the order. The opposite party herein
approached the District Magistrate who
had also passed the orders directing the
Executive Officer to comply with the
order of writ court, but the order was not
complied
with
hence
the
contempt
petition.

4. On 23.7.2003 while issuing notice
to the opposite parties in the contempt
petition they were given one more
opportunity to comply with the order
within a month. It appears that aforesaid
orders were not complied with and the
counter affidavit was filed stating therein
that the stay vacation application and
Special Appeal against the order dated
4.4.2003 passed in the writ petition is
pending. The opposite party no.2 in the
contempt
application
has
filed
his
affidavit stating that he has already passed
an order dated 19.8.2003 directing that the
charge of post be handed over to the
applicant but the opposite party no.1 in
the contempt petition did not comply with
the aforesaid orders as such vide order
dated 20.5.2004 the learned Single Judge
gave an opportunity to the opposite party
no.1 in the contempt petition either to get
the stay vacation application disposed of
or obtain any interim stay order in special
appeal. In the case no such order is
obtained she was directed to appear in
person. Thereafter, it appears that an order
of removal of opposite party no.1 was
passed by the State Government. Opposite
party no.1 has challenged her removal and
obtained stay order from the court, which
is in operation. It was brought on record
that the Special Appeal is time barred and
till date the delay has not been condoned.
The enquiry has been completed and the
applicant has been exonerated from the
charges but the opposite party no. 1 has
not yet passed any final order thereon. It
appears that on the basis of the aforesaid
facts and circumstances of the case the
Superintendent of Police, Mahoba was
directed forthwith to take into custody
Smt.Rama Devi opposite party no.1 in
contempt petition and to cause her
production in custody before the Court on
18.8.2004.
However,
on
19.8.2004
learned Single Judge framed the charge
against opposite party no.1 which reads as
under:-

"You Smt. Rama Devi, Chairman,
Nagarpalika, Kabrai District Mahoba
442 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
show cause why you should not be
brought and punish under section 12 of
the Contempt of Courts Act for wilful and
deliberate
violation
of
order
dated
4.4.2003 in writ petition no.14661 of
2003. Your reply can be filed on or before
13.9.2004 after serving a copy on the
counsel for the applicant. The case was
directed to be listed on 17.9.2004 by
which time the counsel for the applicant
was also directed to file reply, if any."

5. On 18.9.2004 the learned Single
Judge has observed that it transpires that
the applicant has since been reinstated,
however, his arrears of salary and current
salary has not been paid. Whosoever is
holding the charge may release the arrears
and current salary of the applicant. The
case was directed to be listed on 6th
October 2004. On this date the learned
Single Judge has permitted the counsel for
the applicant to implead Shri Shiv Lal,
S.D.M.
Mahoba/Administrator,
Nagar
Palika, Kabrai District Mahoba appellant
herein as opposite party no.3 in the
contempt petition and issued notice
directing him to appear in the Court on
date fixed 3.11.2004. On 3.11.2004 the
appellant opposite party no.3 of contempt
application appeared before the Court and
filed an affidavit stating that the order has
been complied with and payment has been
made to the applicant on 29.10.2004.
However, he did not reply the specific
allegations
made
in
the
affidavit
accompanying
to
the
Impleadment
application dated 6.10.2004.

6. On 3.11.2004 it appears that
learned Single Judge while taking note of
the allegations mentioned in the affidavit
filed in support of the Impleadment
application has observed that serious
allegations made in the aforesaid affidavit
have not been specifically denied. The
Court is left with no other option but to
presume the same to be true and further
went on recording a finding that Shri Shiv
Lal, S.D.M., Mahoba is guilty under
section 12 of the Contempt of Courts Act.
Although an apology was tendered but the
same was not accepted. The Court has
directed the learned counsel for the parties
to address on the question of sentence on
the aforesaid date. After hearing the
parties on the question of sentence the
learned Single Judge has held that
opposite party 3 has not only deliberately
and wilfully refused to obey the command
of the Court, but he has also harassed the
applicant for approaching the writ court
and the contempt court and a fresh charge
sheet
has
been
issued against the
applicant, on the very same charges for
which earlier inquiry had already been
held in pursuance of the order of the writ
court and he has been exonerated there
from. Thus mere fine would not meet the
ends of justice and recorded his opinion
that the facts of the case demands that
Shri Shiv Lal S.D.M. Mahoba be
sentenced to simple imprisonment of 15
days and a fine of Rs.1000/- payable to
the Registrar General of this Court within
a month. In case of failure to deposit the
fine the opposite party no.3 shall further
undergo 7 days simple imprisonment in
lieu thereof. Against this order of
conviction and sentence the abovenoted
appeal has been filed by the appellant
(opposite
party
No.3
of
contempt
application) under Section 19 of the
Contempt of Courts Act.

We have heard Sri A.K. Bajpai,
learned counsel for the appellant and Sri
D.S. Srivastava for the respondent.
1 All] Shiv Lal V. Ram Babu Dwivedi
443
7. The thrust of submission of the
learned counsel for the appellant is that on
6th October, 2004 the appellant has been
impleaded first time as opposite party 3 in
the contempt petition and prior to it he
was not party to the proceeding in
question and he was directed to appear in
person on 3.11.2004 on which date the
impugned order has been passed. Since
the appellant has complied with the order
passed by this Court referred earlier,
therefore, he did not make specific reply
to the averments contained in the affidavit
filed
in
support
of
Impleadment
application moved by the applicant
impleading the appellant as opposite party
no.3 in the contempt petition. However,
he tendered his unconditional apology
filed on 3.11.2004 stating that order
passed by this Court in the writ petition as
well as contempt petition has been
complied with both in letters and spirit.
Except the allegations contained in the
affidavit filed in Impleadment application
neither any charge has been framed
against the appellant nor he has been
specifically asked to reply any charge in
the contempt proceedings rather the
learned Single Judge has relied upon the
allegations made in the affidavit filed in
support of Impleadment application and
straightway held the appellant guilty of
the charge alleged in the affidavit filed in
support of the Impleadment application.
Thus the appellant has been denied
opportunity of hearing to have his say in
the matter against the charge which were
found proved against him without framing
of any such charge and without asking his
reply thereon. In support of his argument
the learned counsel for the appellant has
further submitted that since the contempt
proceedings is quasi criminal in nature
therefore before conviction order is
passed in the contempt proceedings it is
necessary to frame the charge and prove
the same against the appellant beyond
reasonable doubt. Since no such steps
were
taken
before
convicting
the
appellant as such the conviction and
sentence of imprisonment is wholly
erroneous, illegal and against well known
practice of this court and not sustainable
in the eye of law.

8. The learned counsel for the
appellant has further urged that in given
facts and circumstances of the case the
appellant cannot be held guilty of the
charges of contempt levelled against him.
Firstly on account of fact that against the
interim order passed in the writ petition
the stay vacation application has already
been moved by the respondents in the writ
petition along with the counter affidavit
and special appeal has also been filed
against the same interim order along with
the delay condonation application and
stay application, but without waiting for
final disposal of stay vacation application
moved in writ petition as well as stay
application moved in special appeal filed
against the interim order passed by
learned Single Judge in the writ petition
in question he proceeded with the
contempt
matter
and
punished
the
appellant in such contempt proceeding
before
disposal
of
stay
vacation
application as well as stay application in
special appeal rendering the aforesaid
proceeding infructuous. Secondly in any
view of the matter the appellant did not
commit any contempt of this Court as he
did not violate or defied any interim order
passed either in the writ petition or in the
contempt petition referred earlier. In case
any delay was caused in compliance of
the orders passed by the writ court as well
as contempt court the delay was not on
account of the personal fault of the
444 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
appellant rather it was unavoidable in
given facts and circumstances of the case.
At any rate the delay in compliance
cannot be held to be wilful defiance or
deliberate defiance of any interim order
passed by writ court or contempt court.
Thus the impugned judgment and order
passed by learned Single Judge is not
sustainable in the eye of law. Contrary to
it learned counsel appearing for opposite
party
has
supported
the
impugned
judgment and order passed by learned
Single Judge and made serious attempt to
justify the impugned order.

9. Having gone through the rival
contention and submission of the parties
following
question
arises
for
consideration in this appeal.

1. As to whether in given facts and
circumstances of the case the learned
Single Judge was justified in proceeding
with the contempt application before the
disposal of the stay vacation application
moved on behalf of the respondents in the
writ petition in as much as stay
application moved in the special appeal
filed against the interim order dated
4.4.2003 passed in Civil Misc. Writ
Petition No. 14661 of 2003?

2. As to whether learned Single Judge
was justified in holding the appellant
guilty of contempt without framing any
specific charge against him and without
asking any reply thereon from the
appellant?

3. As to whether the appellant is guilty
of committing any wilful and deliberate
contempt on account of any wilful and
deliberate defiance of interim order
passed by the writ court and/or in the
contempt proceedings?

10. Now coming to the first question
as to whether As to whether in given facts
and circumstances of the case the learned
Single Judge was justified in proceeding
with the contempt proceedings before the
disposal of the stay vacation application
moved on behalf of the respondents in the
writ petition in as much as stay
application moved in the special appeal
filed on behalf of the respondents against
the interim order dated 4.4.2003 passed in
Civil Misc. Writ Petition No. 14661 of
2003? In this connection at the very out
set it is necessary to point out that the
Contempt of Courts Act 1971 defines
contempt of courts and civil contempt as
under:

2. Definitions.--In this Act, unless the
context otherwise requires.

(a) "Contempt of Court" means civil
contempt or criminal contempt;
(b) "Civil contempt" means wilful
disobedience to any judgment, decree,
direction, order, writ or other process of a
Court or wilful breach of an undertaking
given to a Court;

11. From a bare reading of the
aforesaid provisions of Act it is clear that
before holding a person guilty of civil
contempt it is necessary to prove that
there is a wilful disobedience by the said
person in judgment, decree, direction,
order, writ or other process of the court or
wilful breach of an undertaking given to a
Court. Thus primary function of this
Court
dealing
with
the
contempt
proceedings in civil contempt is of the
nature of execution court to ensure
compliance of the judgment, decree,
direction, order writ or other process of
1 All] Shiv Lal V. Ram Babu Dwivedi
445
the court, the violation of which is
complained of in such proceedings.

12. Now coming to the question in
issue it is necessary to point out that
Hon'ble Apex Court has dealt with similar
issue earlier at various occasions. In J &
K Vs. Mohd. Yaqoob Khan and others
reported in (1992) 2 UPLBEC 1166. In
para 5 and 6 of the judgment Hon'ble
Apex Court observed as under:-

"5. We find great force in the
argument of Mr.Salve that so long the
stay matter in the writ petition was not
finally disposed of, the further proceeding
in
the
contempt
case
was
itself
misconceived and no orders therein
should have been passed. Mr. Phandare
appearing on behalf of the writ petitioner,
who is respondent before us, has
strenuously contended that the orders
passed in the contempt proceedings
should be treated to have disposed of the
stay matter in the writ petition also. He
laid great emphasis on the fact that the
counsel for the respondents in the writ
petition had been heard before the orders
were issued. He invited our attention to
the merit of the claim. It is argued that the
order dated March 19, 1990 must, in the
circumstances, be treated to have become
final and, therefore, binding on the State
and the High Court was right in issuing
the
further
direction
by
way
of
implementation of earlier order.
We do not agree. The scope of a
contempt proceeding is very different
from that of the pending main case yet to
be heard and disposed of (in future).
Besides, the respondents in a pending
case are at a disadvantage if they are
called upon to meet the merits of the
claim in a contempt proceeding at the risk
of being punished. It is, therefore, not
right to suggest that it should be assumed
that the initial order of stay got confirmed
by the subsequent orders passed in the
contempt matter.
6. We, therefore, hold that the High
Court should have first taken up the stay
matter
without
any
threat
to
the
respondents in the writ case of being
punished
for
contempt.
Only
after
disposing it of, the other case should have
been taken up. It is further significant to
note that the respondents before the High
Court were raising a serious objection
disputing the claim of the writ petitioner.
Therefore, an order in the nature of
mandatory direction could not have been
justified unless the Court was in a
position to consider the objections and
record a finding, prima facie in nature, in
favour of the writ petitioner. Besides
challenging the claim on merits, the
respondents is entitled to raise a plea of
no maintainability of a writ application
filed for the purpose of executing a
decree. It appears that at an earlier stage
the decree in question was actually put in
execution when the parties are said to
have
entered
into
a
compromise.
According to the case of the State the
entire liability under the decree (treated
with the compromise) has already been
discharged. The dispute, therefore, will be
covered by Section 47 of the Code of Civil
Procedure. It will be a serious question to
consider whether in these circumstances
the writ petitioner was entitled to
maintain his application under Article
226 of the Constitution at all. We do not
want to decide any of these controversies
between the parties at this stage except
holding that the orders passed in the
contempt proceeding were not justified,
being pre-mature, and must, therefore, be
entirely ignored. The High Court should
first take up the stay matter in the writ
446 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
case and dispose it of by an appropriate
order. Only thereafter it shall proceed to
consider whether the State and its
authorities could be accused of being
guilty of having committed contempt of
Court."

13.

The
law
laid
down
in
Mohd.Yaqoob's Khan's case (supra) has
been followed in subsequent decision of
the Apex Court in Modern Food
Industries (INDIA) Ltd. and another Vs.
Sachidanand Dass and Another 1995
Supp. (4) SCC 465 wherein in para 4,5
and 6 of the decision Hon'ble Apex Court
held as under :-

"4.
Before
the
High
Court,
appellants urged that before any contempt
proceedings could be initiated, it was
necessary
and
appropriate
for
the
Division Bench to examine the prayer for
stay, or else, the appeal itself might
become
infructuous.
This
did
not
commend itself to the High Court which
sought to proceed with the contempt first.
We are afraid, the course adopted by the
High Court does not commend itself as
proper. If, without considering the prayer
for committal for contempt, the appellants
may find, as has now happened, the very
purpose of appeal and the prayer for
interlocutory stay infructuuo7us. It is true
that a mere filing of an appeal and an
application for stay do not by themselves
absolve the appellants from obeying the
order
under appeal and
that
any
compliance with the learned Single
Judge's order would be subject to the final
result of the appeal. But then the changes
brought about in the interregnum in
obedience of the order under appeal
might themselves be a cause and source
of prejudice. Wherever the order whose
disobedience is complained about is
appealed against and stay of its operation
is pending before the Court, it will be
appropriate to take up for consideration
the prayer for stay either earlier or at
least simultaneously with the complaint
for contempt. To keep the prayer for stay
stand by and to insist upon proceeding
with the complaint for contempt might in
many conceivable cases, as here, cause
serious prejudice. This is the view taken
in State of J & K v. Mohd. Yaqoob Khan.
5. In the present case, under the
threat of proceedings of contempt, the
appellants had to comply with the order
of
the
learned
Single
Judge
notwithstanding the pendency of their
appeal and the application for stay. The
petitioners are confronted with a position
where their stay application is virtually
rendered infructuous by the steps they had
to take on threat of contempt.
6. We, accordingly, direct that all
further proceedings in the contempt
proceedings
be
stayed.
It
will
be
appropriate for the High Court to take up
and dispose of the application for stay
without reference to the developments in
the
interregnum,
namely,
that
the
respondent had to obey the order of the
learned Single Judge under pain of
proceedings of contempt. Depending upon
the outcome of the appellants' application
for stay, the further question whether or
not the reinstatement should be reversed
would arise."

14. Again in a slightly different
factual backdrop Hon'ble Apex Court has
considered
similar
controversy
in
Dr.Phunindra Singh and others Vs.
K.K.Sethi and Another , 1998 (8) SCC
640 wherein in para 2 of the decision the
Hon'ble Apex Court has observed as
under:
1 All] Shiv Lal V. Ram Babu Dwivedi
447
"2. Heard learned counsel for the
parties. In our view, in the facts of the
case, particularly when the order passed
by the learned Single Judge of the High
Court was not stayed by the Division
Bench, the contempt petition should have
been disposed of on merits instead of
adjourning the same till disposal of the
appeal, so that question of deliberate
violation of the subsisting order of the
Court is considered and enforceability of
the court's order is not permitted to be
diluted. In the acts of the case, we feel
that the contempt petition should be
disposed of within a period of three
months
from
the
date
of
the
communication of this order and we order
accordingly. It is further directed that
before disposal of the contempt petition,
the pending appeal should not be taken up
for hearing. The appeal is accordingly
disposed of."

In Suresh Chandra Poddar Vs.
Dhani Ram and others 2002 (1) SCC
766, the Hon'ble Apex Court has
considered again similar controversy and
in para 9 and 11 of the decision held as
under:-

"9. Section 12 of the contempt of
Courts act, 1971 has indicated a caution
that while dealing with the powers of
contempt, the court should be generous,
in discharging the contemner if he tenders
an apology to the satisfaction of the court.
In the present case the apology tendered
was found satisfaction of the court. In the
present case the apology tendered was
found to be not genuine by the Tribunal.
We are dismayed, if not distressed, that
despite delineating on all the steps
adopted by the appellant for challenging
the order of the Tribunal before the High
Court and despite the fact that the
appellant had implemented the order even
though there was no time schedule to do
so, the Tribunal has chosen to depict the
apology tendered by the appellant as one
without contrition.
11. Even if the appellant had not
implemented the order and if the
appellant had brought to the notice of the
Tribunal that the order of the Tribunal is
under challenge before the High Court
under Article 226 of the Constitution of
India (the course which has been
judicially recognized by a seven-Judge
Bench of this Court in L. Chandra Kumar
v. Union of India the Tribunal should
have been slow to proceed against the
party in a contempt action. Of course it
can be said that no stay was granted by
the court when the appellant moved the
Division Bench of the High Court under
Article 226 of Constitution. Not granting
the stay by itself is not enough to speed up
proceedings against a person in contempt
because the very order is yet to become
final. At any rate the Tribunal should
have directed the appellant to implement
the direction, in the absence of the stay
order from the High Court, within a time
framed fixed by it. We would have
appreciated if the Tribunal had done so
and then considered whether action
should be taken in the event of the non
implementation of the order after the
expiry of the said time-frame."

15. Thus from a close analysis of the
decisions of Hon'ble Apex Court referred
herein before it appears that the three
Judges Bench of Hon'ble Apex Court in
Mohd. Yaqoob Khan's case (supra) has
held that so long the stay matter in the
writ petition was not finally disposed of
the further proceeding in the contempt
case was itself misconceived and no
orders should have been passed. The
448 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Hon'ble Apex Court has further held that
in the circumstances of the case, the
contempt proceeding is premature and
liable to be ignored. In the aforesaid case
the contempt proceedings were drawn on
account of non-compliance of interim stay
order
against
which
stay
vacation
application of respondents in writ petition
was pending before the High Court. The
same view has been reiterated by two
Judges Bench of Hon'ble Apex Court in
Modern Food Industries case (supra)
wherein final order of learned single
Judge was challenged at appellate forum
of same High Court and stay application
in appeal was pending consideration,
meanwhile contempt proceedings were
drawn to implement the order of learned
single Judge before disposal of stay
application. In the aforesaid facts and
situation of the case Hon'ble Apex Court
has held that wherever the order whose
disobedience
complained
about
is
appealed against and stay of its operation
is pending before the court, it will be
appropriate to take up for consideration
the prayer for stay either earlier or atleast
simultaneously
with
complaint
for
contempt. To keep the prayer for stay
stand by and to insist upon proceeding
with the complaint for contempt might in
many conceivable cases, as here, cause
serious
prejudice.
Although
in
Dr.
Phurindra Singh & others case (supra)
two Judges division Bench of the Hon'ble
Apex Court has taken different view in
the
matter
without
noticing
earlier
decision of larger and co-ordinate Bench
but it was in a slightly different factual
backdrop of the case, wherein the order
passed by learned single Judge was not
stayed by the Division Bench of the same
High Court, the Hon'ble Apex Court has
taken different view in the matter and has
held that when the order passed by
learned single Judge of the High Court
was not stayed by Division Bench, the
contempt petition should have been
disposed
of
on
merits
instead
of
adjourning the same till disposal of appeal
so that the question of deliberate violation
of subsisting order of the court is
considered and enforceability of the
court's order is not permitted to be diluted.
Again in Suresh Chandra Poddar's case
(supra) two Judges Division Bench of
Hon'ble Apex Court has taken virtually
same and similar view as was taken in
first two cases referred earlier but without
making reference of those cases and in
given facts and situation of the case under
consideration Hon'ble Apex Court has
held that not granting the stay by itself is
not enough to speed up proceedings
against a person in contempt because the
very order is yet to become final. At any
rate the tribunal should have directed the
appellant to implement the direction, in
absence of stay order from the High
Court, wherein a time frame fixed by it.
We would have appreciated if the tribunal
had done so and then considered whether
the action should be taken in the event of
the non-implementation of the order after
expiry of said time frame.

16. Now before examining the
extent of applicability of law laid down
by the Hon'ble Apex Court in given facts
and circumstances of the case, the
question arises for consideration as to
whether earlier decision of larger Bench
of Hon'ble Apex Court rendered in Mohd.
Yaqoob Khan's case followed in Modern
Food Industries Case would prevail and
be binding upon this court or later
decision of two Judges smaller Bench, of
Hon'ble Apex Court rendered in Dr.
Phunindra Singh and others case? In this
regard it is necessary to point out, as
1 All] Shiv Lal V. Ram Babu Dwivedi
449
discussed earlier that virtually there is no
real
conflict
between
the
aforesaid
decisions. The later decision has been
rendered by the Hon'ble Apex Court in
altogether different factual back drop of
the case. Therefore, the law laid down by
Hon'ble Apex Court should be understood
in context of the case in which the
aforesaid decisions were rendered, but
assuming for the sake of clarification, if
there exist any direct conflict between the
decision of earlier larger Bench of Apex
Court and the decision of later smaller
Bench, which of the either decisions have
binding effect upon this court, is a
question,
has
already
received
consideration of Hon'ble Apex Court
earlier at several occasions.

17. In N. Meera Rani Vs.
Government
of
Tamil
Nadu
and
another, (1989) 4 S.C.C. 418, in para 21
of the decision Hon'ble Apex Court has
held that the decision of later Benches
following a Constitution Bench decision
can not be construed at variance with the
larger
Bench
decision.
For
ready
reference para 21 of the decision is
reproduced as under :

"21. A review of the above decisions
reaffirms the position which was settled
by the decision of a Constitution Bench in
Rameshwar Shaw case. The conclusion
about validity of the detention order in
each case was reached on the facts of the
particular case and the observations made
in each of them have to be read in the
context in which they were made. None of
the observations made in any subsequent
case can be construed at variance with the
principle indicated in Rameshwar Shaw
case for the obvious reason that all
subsequent decisions were by benches
comprised of lesser number of judges. We
have dealt with the matter at some length
because an attempt has been made for
some time to construe some of the recent
decisions as modifying the principle
enunciated by the Constitution Bench in
Rameshwar Shaw case."

18. In Union of India and another
Vs. K. S. Subramanian , (1976) 3 S.C.C.
677, in para 12 of the decision Hon'ble
Apex Court has held as under:

"12. We do not think that the
difficulty before the High Court could be
resolved by it by following what it
considered to be the view of a Division
Bench of this Court in two cases and by
merely quoting the views expressed by
larger benches of this Court and then
observing that these were insufficient for
deciding the point before the High Court.
It is true that, in each of the cases cited
before the High Court, observations of
this Court occur in a context different
from that of the case before us. But, we do
not think that the High Court acted
correctly in skirting the views expressed
by larger Benches of this Court in the
manner in which it had done this. The
proper course for a High Court, in such a
case, is to try to find out and follow the
opinions expressed by larger benches of
this
Court
in
preference
to
those
expressed by smaller benches of the
Court. That is the practice followed by
this Court itself. The practice has now
crystallized into a rule of law declared by
this Court. If, however, the High Court
was of opinion that the views expressed
by larger benches of this Court were not
applicable to the facts of the instant case
it should have said so giving reasons
supporting its point of view."
450 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
19. The aforesaid view has been
reiterated by Hon'ble Apex Court by
quoting the same in para 122 of the
decision rendered in State of Orissa and
others
Vs.
Titaghur
Paper
Mills
Company Ltd. and another, 1985
(supp.) S.C.C. 280,

20. Thus in view of law laid down
by the Hon'ble Apex Court we have no
hesitation to hold that law laid down by
earlier larger Bench of Hon'ble Apex
Court will prevail over the later smaller
Bench decision of the Hon'ble Apex
Court, even if later smaller Bench of
Hon'ble Apex Court considered the earlier
larger Bench decision the same cannot be
construed at variance with the larger
Bench decision.

21. Now having regard to the law
laid down by earlier larger Bench of
Hon'ble Apex Court in Mohd. Yaqoob
Khan's case followed in subsequent two
Judges Division Bench of Apex Court it
was necessary for the learned single Judge
to
defer/postpone
the
contempt
proceedings till the disposal of the stay
vacation application moved against the
interim order dated 4.4.2003 passed in
writ petition or till the disposal of the stay
application moved in special appeal or it
was necessary for the learned Single
Judge to examine the bonafide of the
respondents of the writ petition in moving
such stay vacation application as well as
in filing such special appeal against the
interim order in question and come to a
definite conclusion as to whether the
respondents of the writ petition have
genuinely and bonafide moved the stay
vacation application and filed the special
appeal or not. Unless such efforts were
made by the learned Single Judge it was
not desirable for the learned Single Judge
to proceed with the contempt proceedings.

22. However from the perusal of
impugned order it appears that at one
stage of proceedings, the learned Single
Judge has given an opportunity to the
opposite party in the contempt petition to
get the stay vacation application moved in
the writ petition disposed of or obtain any
interim order in the special appeal by a
specific date and time with caution that In
case the opposite party would fail to do
so, learned Single Judge would proceed
with the contempt matter and it appears
that on such failure within such time
frame, the learned Single Judge has
proceeded with the contempt proceeding
without awaiting any more and without
examining the genuineness and bonafide
of the actions of the opposite party in
moving the stay vacation application in
writ petition and stay application in
special appeal against the interim order
passed in writ petition in question. Thus
in our considered opinion the action of the
learned Single Judge in this regard does
not satisfy the law laid down by the
Hon'ble Apex Court. However, having
regard to the facts and circumstances of
the case and subsequent developments,
which have taken place, we need not to go
into this question further more.