# Sri T. George Joseph, Principal Secretary v. Vijay Kumar Srivastava

- **Citation:** (2003) 2 ILRA 266
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-04-16
- **Case number:** Contempt Appeal No. 1673 of 2003
- **Bench:** Tarun Chatterjee, C.J. Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-t-george-joseph-principal-secretary-v-vijay-kumar-srivastava-40083
- **Pages:** 6

## Headnote

Contempt of courts Act- Section 19-
Appeal against order summoning the
appellant to produce the evidence in
defence for non compliance of order
passed by the single Judge whether is
appeal
against
interfere
order
maintainable
?
held-
yes-
appeal
admitted- appellant to more vacation of
the order- impugned order stayed for
period of 3 months.

Held- Para 11

Order decides some disputes raised
before the Court by the contemnor
asking it to drop the proceedings on one
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2 All] Sri T. George Joseph, Principal Secretary V. Vijay Kumar Srivastava
267
ground or the other, the appeal against
the said order is maintainable.
Case law referred:
1978 (2) SCC-370
2000(4) SCC-400
AIR 1996 SC-2131

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
266
no assistance to the appellants in as much
as in the present case, there is no material
on record to show as to what was the
prescribed
qualification
for
the
appointment of Assistant Teacher in
primary school in the year 1973. The
respondent no. 1 had been appointed on
the said post in the year 1973 and she
continued to work till 1992 as trained
teacher and the salary in that grade had
also been paid, thus, it cannot be said that
she
did
not
possess
the
requisite
qualifications

9. In the case of state of U.P. and
others vs. Param Hansh Singh (supra) this
Court has held that the Rule has fixed the
minimum height and the measurement of
chest (expanded and unexpanded) and
there is no scope for any kind of variation
in the same. If a candidate is unable to
meet the prescribed standard even by a
slight margin , he has to be held as
unqualified.

10. In the present case we find that
the
prescribed
qualification
for
appointment on the post of Assistant
teacher for the first time came into force
on 1.7.1975 whereas appointment had
been made on 17.7.1973. In the absence
of any prescribed qualification, there was
no illegality in the appointment of the
respondent no. 1.

11. So far as the contention that the
relief which was not prayed for, was
allowed
by
the
learned
Judge
is
concerned, we find that the appointment
of the respondent no. 1 was perfectly
valid and justified and, thus, this question
does not arise.

12. In view of foregoing discussions,
we do not find any merit in this Special
Appeal. The special appeal is dismissed.

13. However, the parties shall bear
their own costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.4.2003

BEFORE
THE HON'BLE TARUN CHATTERJEE, C.J.
THE HON'BLE VINEET SARAN, J.

Contempt Appeal No. 1673 of 2003

Sri T. George Joseph, Principal Secretary,
Tax Registration Government of U.P.,
Lucknow

...Appellant
Versus
Vijay Kumar Srivastava ...Respondent

Counsel for the Appellant:
Sri Upadhyay
Sri R. Vijai
S.C.

Counsel for the Respondent:
Sri Satish Chaturvedi
A.G.A.

Contempt of courts Act- Section 19-
Appeal against order summoning the
appellant to produce the evidence in
defence for non compliance of order
passed by the single Judge whether is
appeal
against
interfere
order
maintainable
?
held-
yes-
appeal
admitted- appellant to more vacation of
the order- impugned order stayed for
period of 3 months.

Held- Para 11

Order decides some disputes raised
before the Court by the contemnor
asking it to drop the proceedings on one
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2 All] Sri T. George Joseph, Principal Secretary V. Vijay Kumar Srivastava
267
ground or the other, the appeal against
the said order is maintainable.
Case law referred:
1978 (2) SCC-370
2000(4) SCC-400
AIR 1996 SC-2131

(Delivered by Hon'ble Tarun Chatterjee, C.J.)

1. The alleged contemnor Mr. T.
George Joseph, Principal Secretary, Tax
Registration,
Government
of
U.P.,
Lucknow is the appellant before us. He
files this appeal against an order of a
learned
Judge
exercising
contempt
jurisdiction in which the learned Judge
after considering the allegations made in
the application for contempt has framed a
charge which is as follows :-

"That you failed to follow the
directions given by the Division Bench of
this Court on 7.12.2000 passed in civil
misc. writ petition no. 38807 of 2000 and
connected writ petitions in preparing the
seniority list of entertainment and betting
tax
inspector
grade-II
and
thereby
willfully disobeyed the above order of this
court."

2. After framing the charge the
learned Contempt Judge also directed the
appellant to produce evidence in his
defence of the charge by affidavit within
three weeks.

3. A preliminary objection has been
raised by the private respondent saying
that no appeal lies against the impugned
order in view of the fact that there was no
final decision of the matter. According to
the learned counsel for the private
respondent, an appeal shall lie against
only those orders or decisions in which
some point was decided or finding given
in the exercise of jurisdiction of the High
Court to punish for contempt. Learned
counsel for the private respondent further
submitted that from the impugned order it
could not be said that the learned Judge
has initiated the proceeding to punish for
contempt. In support of his submission
learned counsel for the respondent relied
on several decisions of the Supreme
Court, the first of which is reported in
AIR 1976 SC 1206 Barada Kanta Misra
v. Orissa High Court. The next decision
on which the learned counsel for the
respondent has relied on is the decision of
the Supreme Court in the case of. State of
Maharasthra Vs. Mahbood S. Allibhoy
and another AIR 1996 SC 2131 and also
another decision of the Supreme court in
the case of Purshottam Dass Goel v.
Hon'ble Mr. Justice B.S. Dhillon and
others reported in (1978) 2 SCC 370.
Relying on these decisions the learned
counsel
for
the
private
respondent
submitted before us that no appeal lies
against the impugned order.

4. Sri Upadhyay appearing on behalf
of the alleged contemnor, refuted the
arguments of the learned counsel for the
private respondent. According to Sri
Upadayaya an appeal is maintainable
against the impugned order as from the
impugned order it appears that cognizance
of the contempt proceeding has been
taken and a contempt proceeding has been
initiated and finally by the impugned
order the learned contempt Judge has
framed a charge against the alleged
contemnor and thereby directed the
alleged contemnor to produce- evidence
in support of his defence. Sri Upadaya has
taken us through certain paragraphs of the
application for discharge filed by the
alleged contemnor and sought to argue
that from the impugned order it will be
apparent that it was really the initiation of
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
268
the contempt proceedings to punish for
contempt. In support of his contention Sri
Upadaya relied on a decision of the
Supreme Court in the case of R.N. Dey
and others vs. Bhagyuabati Pramaniak
and others (2000) 4 SCC 400.

5. After considering the submissions
made on behalf of the respective parties
and after going through the decisions
cited at the Bar we are of the view that
this appeal is maintainable in law. Before
we decide this question, we may refer to
Sections 17 and 19 of the contempt of
courts act, 1971 (herein after referred to
as the Act).

6. Section 17 of the Act deals with
procedure after cognizance. Section 17 (i)
says that a notice of every proceeding
under
section
15
shall
be
served
personally on the person charged, unless
the court for reasons to be recorded
directs otherwise. Sub section 3 of
Section 17 provides that the Court may, if
it is satisfied that a person charged under
section 15 is likely to abscond or keep out
of the way to avoid service of the notice,
order the attachment of his property of
such value or amount as it may deem
reasonable. Sub section 5 of section 17
says that any person charged with
contempt under section 15 may file an
affidavit in support of his defence, and the
court may determine the matter of the
charge either on the affidavits filed or
after taking such further evidence as may
be necessary and pass such order as the
justice of the case requires.

7. Section 19 of the Act provides for
an appeal against any order or decision of
the High Court in the exercise of its
jurisdiction to punish for contempt, where
the order or decision is that of a Single
Judge, to a Bench or not less than two
Judges of the court, where the order or
decision is that of a Bench to the Supreme
Court.

8. Now the question is whether the
impugned
order
comes
within
the
meaning of any order or decision to
punish for contempt. If we hold that it is
so, then there will be no difficult in
holding that an appeal lies against the
aforesaid order. In our view the appeal is
maintainable in law. As noted above
section 19 of the Act clearly says that an
appeal shall lies as of right from any order
or decision of the High Court, to a
Division Bench of the High Court when a
situation arises to punish for contempt.
Therefore, let us see whether by the
impugned order the learned Contempt
Judge has exercised his jurisdiction to
punish for contempt.

9. We have carefully read the
judgement under appeal and we find that
the
learned
contempt
judge
after
considering the entire materials on record
has come to a finding that there was
intentional violation of the order of the
Division Bench of this court as the
alleged contemnor had failed to follow the
directions given by the Division Bench of
this court on 7.12.2000 passed in civil
misc. writ petition no. 38807 of 2000 and
connected writ applications in preparing
the seniority list of Entertainment and
Betting tax Inspector grade II and thereby
willfully disobeyed the above order of this
Court. From the impugned order it also
appears that the learned Contempt Judge
has also exercised his jurisdiction by
coming to a conclusion that the alleged
contemnor had failed to follow the
directions given by the Division Bench of
this court.
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2 All] Sri T. George Joseph, Principal Secretary V. Vijay Kumar Srivastava
269
10. In the case of R.N. Dey and
others
the
Supreme
Court
clearly
observed in Paragraph 2 which is
important for our purposes as follows:

"2. These appeals are filed against the
judgement and order dated 4.8.1998
passed by the High Court of Calcutta in
CR No. 628 of 1998 and CPAN No. 1822
of 1997 in FA No. 232 of 1988. By the
impugned order, the Court accepted
unqualified apology tendered by the
appellants in compliance with the orders
of the Court for not paying the balance
award money due to the respondents. The
Court further directed the appellants to
deposit with the Registrar (Appellate
Side)
the
compensation
money
determined in terms of the order of the
learned Land Acquisition Judge in respect
of the lands acquired by the state as
mentioned in the order and decree within
two weeks from the date of the order
without prejudice to the rights and
contentions of the parties in such
proceedings. Further, the Court did not
pass any order on the application filed by
the Collector for vacating the rule issued
in the contempt proceeding holding that
the Collector cannot go behind the award
passed by him as provided under the Land
acquisition act, 1894."

11. In paragraph 12 of the said
judgement the Supreme Court has also
observed that if the order decides some
disputes raised before the Court by the
contemnor
asking
it
to
drop
the
proceedings on one ground or the other,
the appeal against the said order is
maintainable.

12. In our view, in the present case a
dispute had arisen before the learned
Contempt Judge asking the learned
Contempt Judge to drop the proceedings
on the ground that there was no willful
violation or disobedience of the order of
the Division Bench of this court as the
alleged contemnor had not acted in that
fashion and intentionally violated the
order of the Division Bench. In the
Counter affidavit filed the appellant has
clearly stated that after the order of the
Division Bench was passed, the matter
was sent to the Law Department of the
Government and the Law Secretary
submitted a report on the basis of which
the alleged contemnor had directed the
Commissioner concerned to proceed on
the basis of the Division Bench decision
of this court. Therefore, so far as the
alleged contemnor is concerned, the
question of violating any order of the
Division Bench could not arise at all. In
any view of the matter from the impugned
order it appears that the learned Contempt
Judge had exercised his jurisdiction to
initiate contempt proceedings mainly on
the basis that the alleged contemnor had
failed to follow the directions given by
the Division Bench. Prima facie he was
satisfied that there was no ground to
exercise jurisdiction to initiate contempt
proceeding in view of the fact that cannot
be said to be a willful disobedience of the
order of the Division Bench at the
instance of the alleged contemnor.

13. In the decision of the Supreme
Court in the case of Barada Kanta Misra
v. Orissa High Court on which the
learned counsel for the private respondent
relied on, it has been clearly stated that an
appeal shall lie against those orders or
decisions in which some point was
decided or finding was given in the
exercise of the jurisdiction of the High
Court to punish for contempt. As we have
already noted that in the impugned order
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
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the learned Contempt Judge has decided
some point and a finding has been arrived
at in the exercise of jurisdiction to punish
for contempt for which a charge has been
framed and the alleged contemnor has
been directed to produce evidence in
support of his defence, we are of the view
that the decision of the Supreme Court as
relied upon by the learned counsel for the
private respondent does not help him for
the purposes of holding that the appeal is
not maintainable.

14. So far as the other decision on
which the learned counsel for the
respondent relied upon is the decision of
the Supreme Court in the case of State of
Maharashtra vs. Mahboob S. Allibhoy
and another AIR 1996 SC 2131. In our
view this decision of the Supreme Court
is also not applicable to the facts and
circumstances of the case. In that decision
an order dropping the proceedings for
contempt
or
refusing
to
initiate a
proceeding for contempt was under
appeal before the Division Bench under
section 19 of the Act. This is not the fact
arising in this case. It is neither an appeal
from an order dropping proceeding for
contempt
or
refusing
to
initiate
proceeding to punish for contempt. That
being the position this decision does not
apply to the facts and circumstances of
the present case.

15. The last decision on which the
learned counsel has relied on is a decision
of the Supreme Court in the case of
Purshotam Dass Goel v. Hon'ble Justice
B.S. Dhillon and others (1978) 2 SCC
370. In our view, this decision does not
also help the respondent. On the other
hand this decision helps the appellants. In
this decision the Supreme Court at page
371 has observed which is as under: -
".... The order or the decision must
be such that it decides some bone of
contention raised before the High Court
affecting
the
right
of
the
party
aggrieved......"

The Supreme Court has also held in the
same decision that it is neither possible,
nor advisable, to make an exhaustive list
of the type of orders which may be
appealable to this Court under Section 19.
At page 371 of this decision the Supreme
Court has also observed as follows :-

"....We are not called upon to express our
final opinion in regard to such an order,
but we merely mention this type of order
made at some intermediate stage in the
proceeding may be appealable under
Section 19. In our considered judgment,
an order merely initiating the proceeding
without anything further, does not decide
anything against the alleged contemnor
and cannot be appealed against as a
matter of right under Section 19. In a
given case special leave may be granted
under Article 136 of the Constitution from
an order initiating the proceeding. But
that is entirely a different matter. What we
are deciding in this case is that the present
appeal filed under Section 19 (1) of the
Act does not lie and is incompetent."

16. From the aforesaid observation
of the Supreme Court it is, therefore, clear
that an appeal shall lie against an order
under section 19 of the Act even where
the
orders
were
passed
at
some
intermediate stage in a proceeding. As we
have discussed already that some bone of
contention was raised by the appellant
before the learned Contempt Judge and,
therefore, it cannot be said that no appeal
lies against such order. The view
expressed by the Supreme Court in the
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2 All] Raj Net Chauhan V. State of U.P. and others
271
said decision has also taken the help of
the decision of the Supreme Court in the
case of Barada Kanta Misra which has
also been discussed by us in the foregoing
paragraph of this order.

17. For the reasons aforesaid we are
of the view that the preliminary objection
raised by the respondent is devoid of any
merit and it should be overruled.

Later

18. Heard learned counsel for the
parties on the question whether this
appeal should be admitted or not. Learned
counsel for the respondent, however,
prays for production of the records
relating to the writ petition as well as the
contempt proceedings and at the same
time also prays for production of the
records now lying in the Law Department.

19. After going through the
impugned order and after hearing the
learned counsel for the parties we are of
the view that this appeal should be
admitted and, accordingly, we admit the
appeal and in view of the nature of the
order passed by the learned Contempt
Judge we stay the operation of the
impugned order for a period of three
months from this date with liberty to
apply
for
extension,
vacation
and
variation of the interim order in the
presence of the other side or till the
disposal of the appeal, whichever is
earlier.

20. Regarding the question of
production of records we keep it open that
at the time of hearing of the appeal if
production of the record is found to be
necessary, the records shall be called for.

21. Counter affidavit be filed within
three weeks. Rejoinder affidavit, if any,
may be filed within one week thereafter.

Let the appeal be listed after a
month.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD MAY 22ND, 2003

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 44021 of 1997

Raj Net Chauhan

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri D.N. Shukla

Counsel for the Respondents:
S.C.

Constitution of India- Article 226- the
extreme
penalty
of
dismissal.
This
punishment
has
been
so
awarded
keeping
in
view
the
facts
and
circumstances of this case in as much as
the nature of service which is expected
of a person belonging to a disciplined
force. If the authorities below keeping in
view of this fact that the petitioner being
a member of the disciplined force of the
State Police when deliberately absented
from duty, committed great misconduct,
this Court while acting under Article 226
of the Constitution of India is not
supposed to interfere in the said finding
recorded by them.

Held- para 12

The petitioner being a police personnel
belonging to a disciplined force made his
deliberate absence from duty and did not
perform the assigned job of Santari on