# Shri Kamlakar Tripathi v. The Vice Chancellor, B.H.U., Varanasi and others

- **Citation:** (2001) 2 ILRA 261
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001-03-21
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-kamlakar-tripathi-v-the-vice-chancellor-b-h-u-varanasi-and-others-39888
- **Pages:** 6

## Text

2All] Shri Kamlakar Tripathi V. The Vice Chancellor, B.H.U., Varanasi and others
261
25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21
%/( 90 6$+$, -
7+( +21
%/( 90 6$+$, -

&LYLO 0LVF $SSOLFDWLRQ 1R RI

6UL .DPODNDU 7ULSDWKL
«3HWLWLRQHU
9HUVXV
7KH
9LFH&KDQFHOORU
%+8
9DUDQDVL
DQG RWKHUV
«5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHUV
6UL ,UVKDG $OL
6UL 6KDLOHQGUD .XPDU 3DWKDN
&RXQVHO IRU WKH 5HVSRQGHQWV
6UL 9. 8SDGK\D\D
&RQVWLWXWLRQ
RI
,QGLD
$UWLFOH

FRQWHPSW MXULVGLFWLRQ ZKHWKHU WKH +LJK
&RXUW EHLQJ D FRXUW RI UHFRUG FDQ SXQLVK
WKH DXWKRULW\ WR HQIRUFH LWV RUGHU KHOG
\HV 3URYLVLRQV RI 5XOH $( ;;;9( RI
WKH +LJK &RXUW 5XOHV ZLOO QRW FRPH LQ WKH
ZD\
RI
H[HUFLVLQJ
WKH
3RZHU
XQGHU
$UWLFOH RI WKH &RQVWLWXWLRQ
+HOG 3DUD DQG
7KH SRZHU WR SURFHHG XQGHU $UWLFOH
LV DQ LQKHUHQW SRZHU RI WKH +LJK &RXUW ,W
FDQQRW EH FXUWDLOHG RU DEULGJHG E\ HLWKHU
&RQWHPSW RI &RXUWV $FW RU XQGHU
&KDSWHU ;;;9( RI WKH $OODKDEDG +LJK
&RXUW 5XOHV
&DVH ODZ GLVFXVVHG
 6&&
$,5 6&
 6&&
 6&&

By the Court

1. This is an application under
Article 215 of the Constitution filed by
the petitioner for initiating contempt
proceedings against Sri Y.C. Simhadri,
Vice
Chancellor,
Banaras
Hindu
University, Sri V.V. Menon, Controller of
Examinations, Banaras Hindu University
and Sri P.C. Upadhyaya, Registrar,
Banaras Hindu University for wilful
disobedience of the order dated 21.3.2001
passed by this court in Civil Misc. Writ
Petition No.47177 of 1999. It is prayed
that the aforesaid respondents be punished
for contempt of court.

2. Notice on contempt application
was served on Sri V.K. Upadhaya learned
counsel appearing for respondents on
26.3.2001. This application came up
before this court on 27.3.2001 and it was
directed to be put up along with the
records.

3. Petitioner appeared in LL.B. IInd
year
Examination
in
1997.
After
examination of LL.B. IInd year the
petitioner was expelled by order dated
5.2.1997 passed by Vice Chancellor of the
University. The expulsion was for a
period of two years. The order further
stated that he was not allowed to appear in
entrance test for admission to any course
of the University. After the expulsion
period of two years expired the petitioner
moved an application on 12.8.1999 that
his result of LL.B. IInd year examination
which was withheld due to expulsion be
declared and he be permitted to complete
LL.B. IInd year course provisionally. The
respondents did not admit the petitioner of
LL.B. IIIrd year course nor declared his
result. The respondents issued show cause
notice to the petitioner on 23.10.1999 to
show cause why the petitioner be not
expelled from the University for all times
to come. No order has been passed by the
University in pursuance to show cause
notice. Since the expulsion period of two
years was over the respondents could not
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
262
deny admission to the petitioner in LL.B.
IIIrd year course. The respondents were
further under legal duty to declare the
result of petitioner of LL.B. IInd year
examination which was withheld due to
expulsion as the respondents had not
cancelled the examination of petitioner of
LL.B. IInd year.

4. This court, after hearing the
learned counsel for the petitioner and Sri
V.K.
Upadhyaya
learned
counsel
appearing for the respondents, passed an
interim order on 21.3.2001 which is
extracted below:-

"Heard
Sri
Irshad
Ali
learned
counsel for the petitioner and Sri V.K.
Upadhyaya learned counsel appearing for
respondents.

By order dated 5.2.1997 passed by
the university the petitioner was expelled
from the university for a period of two
years. He was not allowed to appear in
any entrance test for admission to any
course of the university. After the
expulsion period of two years expired, the
petitioner
moved
an
application
on
12.8.1999 that he has passed LL.B. 1st
year examination and his result of LL.B.
IInd year examination was withheld due
to his expulsion. The order of expulsion
passed by the university came to an end
on 5.2.1999. He prayed that his result of
LL.B. IInd year be declared and he be
permitted to complete LL.B. IIIrd year
course. The respondents did not admit the
petitioner and instead issued a show cause
notice to him on 23.10.1999 to show
cause why the petitioner be not expelled
from university for all times to come. No
order has been passed by the University in
pursuance of the show cause notice. The
respondents could not deny admission to
the petitioner in LL.B. IIIrd year course
and were bound to admit the petitioner in
LL.B. IIIrd year course.

Sri V.K. Upadhyaya learned counsel
appearing for the respondents has urged
that till the petitioner is declared pass in
LL.B. IInd year examination he cannot be
permitted to appear in LL.B. IIIrd year
examination. From the facts of this case,
it is clear that after the expulsion came to
end it was duty of the respondents to
declare the result of the petitioner of
LL.B. IInd year examination. For this
lapse on the part of the university the
petitioner is entitled to be compensated by
the university. The university shall show
cause as to why adequate compensation
be not awarded to the petitioner. The
university shall further explain in the
counter
affidavit
as
to
whose
accountability has to be fixed for non
declaration of result of the petitioner. In
this view of the matter the petitioner is
entitled for interim order.

Until further orders of this court the
respondents are directed to declare the
result of the petitioner of LL.B. IInd year
examination, 1997 within three weeks
from the date a certified copy of this order
is produced before respondent no. 3. The
respondents no. 1 to 4 are further directed
to admit the petition in LL.B. IIIrd year
course and permit him provisionally to
appear in LL.B. IIIrd year examination
which is scheduled to commence from
23.3.2001. The necessary form shall be
got filed from the petitioner and the admit
card shall be issued to the petitioner
22.03.2001 by the respondent no.3. This
order shall be complied by respondent no.
3 and a certified copy of this order be
produced before him on 22.03.2001 by
the petitioner.
2All] Shri Kamlakar Tripathi V. The Vice Chancellor, B.H.U., Varanasi and others
263
"Office is directed to issue a certified
copy of this order to the learned counsel
for the parties today on payment of usual
charges."

5. The petitioner served a certified
copy of the order passed by this court on
21.3.2001
on
the
Controller
of
Examinations, Banaras Hindu University,
Varanasi on Sri V.V. Menon who himself
received the order on 22.3.2001. A copy
of the order dated 21.3.2001 was also
served
by
the
petitioner
on
Vice
Chancellor as well as Registrar of the
University. The petitioner complied with
order dated 21.03.2001. This contempt
application under Article 215 has been
filed by the petitioner for punishing the
respondents for committing contempt of
court as they have not complied with the
order dated 21.3.2001.

6. Sri Irshad Ali the learned counsel
for the petitioner has urged that the
respondents
have
intentionally,
deliberately and wilfully flouted the
interim order dated 21.3.2001 passed by
this Court He urged that respondents are
guilty of committing contempt of court
and are liable to be punished under
Article 215 of the Constitution. He urged
that Constitutional powers of this court
under Article 215 of the Constitution
cannot be restricted by the provisions of
Contempt of Courts Act 1971 or by the
Rules of the Allahabad High Court and
this court has ample power to punish the
respondents under Article 215 of the
Constitution.

7. On the other hand, Sri V.K.
Upadhyaya the learned counsel appearing
for the respondents has vehemently urged
that this court had no power under Article
215 of the Constitution to hear a contempt
alleged to have been committed by the
respondents. He urged that under Chapter
XXXV-E of the Rules of the Court, a civil
contempt or criminal contempt could only
be heard by a Single Judge or a Division
Bench nominated by Hon'ble the Chief
Justice. He placed reliance on the decision
of the apex court in High Court of
Judicature at Allahabad through its
Registrar v. Raj Kishore Yadav and others
(1997) 3 SCC 11.

8.
Though
judicial
hyper
sensitiveness in not warranted but angelic
silence on the part of a Judge is also not
expected vis-à-vis an infraction of the
majesty of law. The course of justice must
not be deflected or interfered with. Those
who strike at it strike at the very
foundation of our society. The contempt
of court is a special jurisdiction to be
exercised sparingly and with caution
whenever an act adversely affects the
administration of justice or which tends to
impede its course or tends to shake public
confidence in the judicial institutions.
This jurisdiction may also be exercised
when the act complained of adversely
affects the majesty of law or dignity of the
courts of law. This jurisdiction is not
exercised to protect the dignity of an
individual judge but to protect the
administration of justice from being
maligned. In the general interest of the
community it is imperative that the
authority
of
courts
should
not
be
imperilled and there should be no
unjustifiable
interference
in
the
administration of justice. No such act can
be
permitted
which
may
have the
tendency to shake the public confidence
in the fairness and impartiality of the
administration of justice.
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
264
9. Article 215 of the Constitution of
India states that "Every High Court shall
be a court of record and shall have all the
powers of such a court including power to
punish for contempt of itself." The
Constitution vests the High Court power
to punish for contempt of itself and no
Act of Legislature could take it away.
Power under Article 215 can only be
curtailed or excluded with respect to any
matter by a constitutional amendment and
not by any ordinary legislation. The
maxim "Salus populi suprema lex", that is
"the welfare of the people is the supreme
law": adequately enunciates the idea of
law. This can be achieved only when
justice
is
administered
lawfully,
judicially, without fear or favour and
without being hampered and thwarted,
and this cannot be effective unless respect
for it is fostered and maintained. It may
be necessary to punish for contempt if
someone makes mockery of the judicial
process and mocks at the order of the
court that whatever may be the result he
would
abide
by
his
administrative
decision, which he takes irrespective of
the courts order. In such situations the
court has the duty of protecting the
interest of the public in due administration
of justice so that the confidence of people
in judiciary is not eroded.

10. The argument of Sri V.K.
Upadhyaya that this court has no power to
proceed under Article 215 against the
respondents
and
the
only
remedy
available to the petitioner is to file a
contempt petition under the Contempt of
Courts Act 1971 under Chapter XXXV-E
of the Allahabad High Court Rules 1952
cannot be accepted. The power to proceed
under Article 215 is an inherent power of
the High Court. It cannot be curtailed or
abridged by either Contempt of Courts
Act 1971 or under Chapter XXXV-E of
the Allahabad High Court Rules 1952. It
has to be exercised sparingly and with
caution. The Contempt of Courts Act
1971 is concerned with nature and type of
punishment which a court of record may
impose whereas Chapter XXXV-E of the
Allahabad High Court Rules 1952 has
been framed under section 23 of the
Contempt
of
Courts
Act
1971
is
concerned
with
the
procedure
for
presentation and hearing of contempt of
court cases under the Contempt of Courts
Act 1971. Allahabad High Court Rules
1952 do not lay down any procedure for
exercise of power under Article 215 of the
Constitution.
The
apex
court
has
considered the scope of power under
Article 215 of the Constitution in Pritam
Pal v. High Court of Madhya Pradesh,
Jabalapur through Registrar AIR 1992 SC
904 and has held in paragraph 24 as
under:-

"
From
the
above
judicial
pronouncements of this Court, it is
manifestly clear that the power of the
Supreme Court and the High Court being
the Courts of Record as embodied under
Article 129 and 215 respectively cannot
be restricted and trammelled by any
ordinary
legislation
including
the
provisions of the Contempt of Courts Act
and their inherent power is elastic,
unfettered and not subjected to any limit."

In the same decision in paragraph 41 the
apex court observed:-

"The position of law that emerges
from the above decisions is that the power
conferred upon the Supreme Court and
the High Court, being courts of Record
under Article 129 and 215 of the
Constitution respectively is an inherent
2All] Shri Kamlakar Tripathi V. The Vice Chancellor, B.H.U., Varanasi and others
265
power and that the jurisdiction vested is a
special one not derived from any other
statute but derived only from Articles 129
and 215 of the Constitution of India (see
D.N. Taneja vs. Bhajan Lal (1988)3 SCC
(26) and therefore the constitutionally
vested right cannot be either abridged by
any legislation or abrogated or cut down.
Nor can they be controlled or limited by
any statute or by any provision of the
Code of Criminal Procedure or any Rules.
The caution that has to observed in
exercising
this
inherent
power
by
summary procedure is that the power
should be used sparingly, that the
procedure to be followed should be fair
and that the contemner should be made
aware of the charge against him and given
a
reasonable
opportunity
to
defend
himself"

11. The Constitution Bench of the
apex court in Supreme Court Bar
Association v. Union of India and another
(1998)4 SCC 409 has held that, "The
nature and types of punishment which a
court of record can imposed in a case of
established contempt under the common
law
have
now
been
specifically
incorporated in the Contempt of Courts
Act 1971 insofar as the High Courts are
concerned and therefore to the extent the
Contempt of Courts Act, 1971 identifies
the nature or types of punishments which
can be awarded in the case of established
contempt, it does not impinge upon the
inherent powers of the High Court under
Article 215 either. No new type of
punishment can be created or assumed".
The apex court in another decision in Dr.
L.P. Mishra vs. State of U.P. (1988)7
SCC 379 in paragraph 12 has held that. "
It is true that the High Court can invoke
powers and jurisdiction vested in it under
Article 215 of the Constitution of India
but such a jurisdiction has to be exercised
in
accordance
with
the
procedure
prescribed by law." It further held that the
procedure
prescribed
under
Chapter
XXXV-E of the Allahabad High Court
Rules has to be followed. Even in the
decision of the apex court in Raj Kishore
Yadav (supra) relied by learned counsel
for the respondents it has been held in
paragraph 16 that, "Contempt jurisdiction
is an independent jurisdiction of original
nature
whether
emanating
from
the
Contempt of Courts Act or under Article
215 of the Constitution of India." This
decision was concerned with the question
whether Rule 4 (a) of Chapter XXXV-E
of the Allahabad High Court Rules 1952
is ultra virus to Article 215 of the
Constitution. It did not lay down that the
inherent power of High Court under
Article 215 has been curtailed by
Allahabad
High Court Rules 1952.
Moreover, in view of law laid down by
the Constitution Bench of the apex court
Supreme Court Bar Association (supra)
that the Contempt of Courts Act, 1971
does not impinge upon the inherent
powers of the High Court under Article
215 this court has inherent power to
proceed against the respondents on an
application under Article 215 of the
Constitution.

12. From the facts on record it is
born out that orders passed by this court
on 21.3.2001 in writ petition was
communicated to the respondents but they
did not comply with the order knowingly,
wilfully, intentionally and deliberately
which is clear from the counter affidavit
filed today in the writ petition while this
order was being dictated by this court. In
the counter affidavit there is no whisper
that order dated 21.3.2001 has been
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
266
complied by the respondents. Issue notice
to the respondents.

Sri V.K. Upadhdyaya has accepted
notice on behalf of respondents.

Sri Y.C. Simhadri, Vice Chancellor,
Banaras Hindu University, Varanasi and
Sri
V.V.
Menon,
Controller
of
Examination, Banaras Hindu University,
Varanasi
and
Sri
P.C.
Upadhyaya,
Registrar, Banaras Hindu University,
Varanasi are directed to file counter
affidavit within two weeks and they shall
be personally present in the court on
16.4.2001.

List this case on 16.4.2001 before
appropriate bench.

Office is directed to place the record
of this Contempt Application within one
week from today before Hon'ble the Chief
Justice for nominating appropriate bench.

25,*,1$/ -85,6',&7
25,*,1$/ -85,6',&7,21
,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21
%/( *3 0$7+85 -
7+( +21
%/( *3 0$7+85 -
7+( +21
%/( 6. -$,1 -
7+( +21
%/( 6. -$,1 -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

5DM .LVKRUH DQG RWKHUV
«3HWLWLRQHUV
9HUVXV
7KH &RPPLVVLRQHU *RUDNKSXU 'LYLVLRQ
*RUDNKSXU DQG RWKHUV
«5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6UL $. 0LVUD
&RXQVHO IRU WKH 5HVSRQGHQWV
6&

83
=DPLQGDUL
$EROLWLRQ
$QG
/DQG
5HIRUPV $FW 6V DQG UHDG ZLWK
1RUWKHUQ ,QGLD )HUULHV $FW 6
3HWLWLRQHUV FODLPLQJ RZQHUVKLS RI IHUU\
DQG ULJKW WR UHDOLVH WROO RQ WKH IHUU\ LQ
TXHVWLRQ 1RWLILFDWLRQ LVVXHG XQGHU 6V
DQG RI =$ $FW YHVWLQJ IHUULHV LQ WKH
6WDWH
3HWLWLRQHUV
IDLOLQJ
WR
SURYH
RZQHUVKLS
RYHU
WKH
IHUU\
3HWLWLRQ
GLVPLVVHG
+HOG 3DUDV DQG
&RS\
RI
WKH
RUGHU
GDWHG

SDVVHG E\ WKH 'LVWULFW /DQG 5HIRUPV
2IILFHU 'HRULD ILOHG DV $QQH[XUH RI
WKH ZULW SHWLWLRQ LV DQ LQFRPSOHWH FRS\
,W LV DOVR QRW FHUWLILHG FRS\ RI WKH VDLG
RUGHU $ UHDGLQJ RI WKH RUGHU VKRZV WKDW
6DEKDSDWL
RI
WKH
*UDP
3DQFKD\DW
%DLNXQWKSXU
KDG
JLYHQ
VRPH
UHSRUW
DJDLQVW %KXMDZDQ DQG RWKHUV UHJDUGLQJ
PDQDJHPHQW RI WKH %DLNXQWKSXU *KDW
7KH RUGHU UHFLWHV WKDW
H[LVWLQJ ULJKWV RI
WKH FRQWUDFWRUV RI IHUULHV ZLOO FRQWLQXH
DFFRUGLQJ WR SDUDJUDSK I RI 5HYHQXH
$ 'HSDUWPHQW *2 1R $
 GDWHG 0DUFK DQG WKH
H[LVWLQJ
FRQWUDFWRU
ZLOO
FRQWLQXH

7RZDUGV WKH ERWWRP RI WKH RUGHU WKHUH
LV DQ HQGRUVHPHQW FRS\ IRUZDUGHG WR
WKH H[LVWLQJ FRQWUDFWRU 6UL %KXMDZDQ WR
GHSRVLW GXH DPRXQW LQ WUHDVXU\ DW RQFH
7KLV RUGHU VKRZV WKDW %KXMDZDQ ZDV
ZRUNLQJ LQ WKH FDSDFLW\ RI D FRQWUDFWRU
DQG LW GRHV QRW DW DOO HVWDEOLVK DQ\
SURSULHWDU\ ULJKW RI %KXMDZDQ RYHU WKH
IHUU\ 7KH GLUHFWLRQ LQ WKH RUGHU WR WKH
HIIHFW WKDW FRQWUDFWRU %KXMDZDQ VKRXOG
GHSRVLW WKH DPRXQW FRPSOHWHO\ QHJDWLYHV
WKH FDVH RI WKH SHWLWLRQHUV WKDW WKH\ KDG
DQ\ NLQG RI RZQHUVKLS ULJKW RYHU WKH
IHUU\
7KH QRWLILFDWLRQ XQGHU VHFWLRQ ZDV
LVVXHG RQ -XO\ 7KHUHDIWHU DOO
ULJKWV
WLWOH
DQG
LQWHUHVW
RI
DOO
WKH
LQWHUPHGLDULHV LQ HYHU\ HVWDWH LQ VXFK
DUHD LQFOXGLQJ IHUULHV FHDVHG DQG YHVWHG
LQ
WKH
6WDWH
RI
83
IUHH
IURP
DOO
HQFXPEUDQFHV )HUU\ LV D SDVVDJH RYHU
ZDWHU E\ ERDW DQG LV D FRQWLQXDWLRQ RI
WKH KLJK ZD\ IURP RQH VLGH RI WKH ZDWHU