# ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS

- **Citation:** [2021] 5 S.C.R. 305
- **Court:** Supreme Court of India
- **Decided:** 2021-06-03
- **Case number:** Civil Appeal No. 11017-11018 of 2018
- **Bench:** A. M. Khanwilkar, B. R. Gavai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/abhishek-kumar-singh-v-g-pattanaik-ors-35316
- **Pages:** 45

## Headnote

Contempt of Court: Civil contempt - It is well settled that
contempt action ought to proceed only in respect of established
wilful disobedience of the order of the Court - In the instant case,
the limited direction given by the High Court and not disturbed by
this Court was to permit the petitioners to work on the concerned
posts and to pay them regular salary as and when the same accrues
to them - Grievance of the petitioners in the first set of contempt
petitions was that the respondents have appointed them afresh
instead of reinstatement with continuity of service along with arrears
of wages and thus have wilfully violated the direction of this Court
- The expression used is only "to permit the petitioners to work on
the posts" which were held by them at the time of their termination
and "to pay them regular salary month by month" and "as and
when the same accrues to them" - It is not a case of wilful
disobedience of the orders of the Court.
Contempt of Court: Civil contempt - The second set of contempt
petitions, emanate from termination order issued by the respondents
- These petitions essentially proceed on the allegation that the
respondents committed wilful disobedience of the order of this Court
in not affording prior opportunity of hearing to the petitioners and
similarly placed persons despite express direction contained in the
said order - High Court had set aside the termination order issued
by the respondents, solely on the ground that it was in violation of
principles of natural justice - At the same time, liberty was given to
the respondents to pass a fresh order in accordance with law
including by undertaking exercise of segregating the tainted from
the untainted candidates - Had the respondents concluded that it
was possible to segregate tainted from untainted candidates, they
would have been obliged to comply with the directions given by the
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SUPREME COURT REPORTS
[2021] 5 S.C.R.
High Court and restated by this Court to afford prior opportunity
of hearing to the petitioners and similarly placed persons before
passing fresh, reasoned order - However, from the subject
termination order which is a speaking order, it is crystal clear that
after due enquiry and taking into consideration all aspects of the
matter, in particular the enquiry reports and the opinion of the
experts including final report of SIT, the respondents were of the
considered opinion that it was not possible to segregate tainted from
the untainted candidates for reasons recorded in that order - In
light of the conclusion reached by the respondents that it was not
possible to segregate the tainted from the untainted candidates, in
law, it must follow that the respondents could annul the entire
selection process and pass the impugned order without giving
individual notices to the petitioners and similarly placed persons -
Thus, there was nothing wrong in respondents issuing the said
termination order without affording prior opportunity to the
petitioners and similarly placed persons.
Constitution of India: Arts 32 and 226 - If the termination
order is assailed on the ground of violation of principles of natural
justice or fundamental rights guaranteed under Part III of the
Constitution, such a grievance can be brought before the
constitutional Court including by way of writ petition under Art.32
of the Constitution of India - It is a different matter that this Court
may be loath in entertaining the grievance directly under Art.32
and instead relegate the petitioner(s) before the High Court to first
exhaust the remedy under Art.226 of the Constitution of India - In
the present case, there are other proceedings pending in the form
of contempt petitions and a transfer petition wherein the termination
order is the subject matter - Thus, the arguments in these cases will
be overlapping - In that, the self-same order has been impugned in
the writ petition filed before this Court - The fact that other affected
similarly placed p

## Text

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305
 [2021] 5 S.C.R. 305
ABHISHEK KUMAR SINGH
v.
G. PATTANAIK & ORS.
Contempt Petition (Civil) No. 625-626 of 2019
In
(Civil Appeal No. 11017-11018 of 2018)
JUNE 03, 2021
[A. M. KHANWILKAR AND B. R. GAVAI, JJ.]
Contempt of Court: Civil contempt - It is well settled that
contempt action ought to proceed only in respect of established
wilful disobedience of the order of the Court - In the instant case,
the limited direction given by the High Court and not disturbed by
this Court was to permit the petitioners to work on the concerned
posts and to pay them regular salary as and when the same accrues
to them - Grievance of the petitioners in the first set of contempt
petitions was that the respondents have appointed them afresh
instead of reinstatement with continuity of service along with arrears
of wages and thus have wilfully violated the direction of this Court
- The expression used is only "to permit the petitioners to work on
the posts" which were held by them at the time of their termination
and "to pay them regular salary month by month" and "as and
when the same accrues to them" - It is not a case of wilful
disobedience of the orders of the Court.
Contempt of Court: Civil contempt - The second set of contempt
petitions, emanate from termination order issued by the respondents
- These petitions essentially proceed on the allegation that the
respondents committed wilful disobedience of the order of this Court
in not affording prior opportunity of hearing to the petitioners and
similarly placed persons despite express direction contained in the
said order - High Court had set aside the termination order issued
by the respondents, solely on the ground that it was in violation of
principles of natural justice - At the same time, liberty was given to
the respondents to pass a fresh order in accordance with law
including by undertaking exercise of segregating the tainted from
the untainted candidates - Had the respondents concluded that it
was possible to segregate tainted from untainted candidates, they
would have been obliged to comply with the directions given by the
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SUPREME COURT REPORTS
[2021] 5 S.C.R.
High Court and restated by this Court to afford prior opportunity
of hearing to the petitioners and similarly placed persons before
passing fresh, reasoned order - However, from the subject
termination order which is a speaking order, it is crystal clear that
after due enquiry and taking into consideration all aspects of the
matter, in particular the enquiry reports and the opinion of the
experts including final report of SIT, the respondents were of the
considered opinion that it was not possible to segregate tainted from
the untainted candidates for reasons recorded in that order - In
light of the conclusion reached by the respondents that it was not
possible to segregate the tainted from the untainted candidates, in
law, it must follow that the respondents could annul the entire
selection process and pass the impugned order without giving
individual notices to the petitioners and similarly placed persons -
Thus, there was nothing wrong in respondents issuing the said
termination order without affording prior opportunity to the
petitioners and similarly placed persons.
Constitution of India: Arts 32 and 226 - If the termination
order is assailed on the ground of violation of principles of natural
justice or fundamental rights guaranteed under Part III of the
Constitution, such a grievance can be brought before the
constitutional Court including by way of writ petition under Art.32
of the Constitution of India - It is a different matter that this Court
may be loath in entertaining the grievance directly under Art.32
and instead relegate the petitioner(s) before the High Court to first
exhaust the remedy under Art.226 of the Constitution of India - In
the present case, there are other proceedings pending in the form
of contempt petitions and a transfer petition wherein the termination
order is the subject matter - Thus, the arguments in these cases will
be overlapping - In that, the self-same order has been impugned in
the writ petition filed before this Court - The fact that other affected
similarly placed persons have filed writ petitions directly before the
High Court and which are stated to be pending, can be no
impediment for this Court in entertaining and deciding the writ
petition - For, the issue regarding the purport of orders passed by
this Court needs to be answered appropriately in contempt petitions
only by this Court - It is not open to the High Court to interpret or
explain the order passed by this Court in previous proceedings
between the parties - High Court can only follow the dictum of this
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Court which is binding on it - Accordingly, the preliminary objection
taken by the respondents regarding the maintainability of writ
petition under Art.32 of the Constitution by similarly placed persons
directly filed before this Court to assail the impugned order which
is also subject matter of second set of contempt petitions is not
sustainable - Contempt of court.
Disposing the petitions, the Court
HELD: 1. It is well-established position that if the
termination order is assailed on the ground of violation of
principles of natural justice or fundamental rights guaranteed
under Part III of the Constitution, such a grievance can be
brought before the constitutional Court including by way of writ
petition under Article 32 of the Constitution of India. It is a
different matter that this Court may be loath in entertaining the
grievance directly under Article 32 and instead relegate the
petitioner(s) before the High Court to first exhaust the remedy
under Article 226 of the Constitution of India. That is also because
this Court will then have the advantage of the judgment of the
High Court on relevant aspects. In other words, it is not a question
of maintainability of writ petition, but one of exercise of discretion
with circumspection in entertaining writ petition under Article
32 in such matters. Further, in the present case, there are other
proceedings pending in the form of contempt petitions and a
transfer petition wherein the termination order dated 02.03.2020
is the subject matter. Thus, the arguments in these cases will be
overlapping. In that, the self-same order has been impugned in
the writ petition filed before this Court. The fact that other affected
similarly placed persons have filed writ petitions directly before
the High Court and which are stated to be pending, can be no
impediment for this Court in entertaining and deciding the writ
petition. For, the issue regarding the purport of orders passed
by this Court needs to be answered appropriately in contempt
petitions only by this Court. It is not open to the High Court to
interpret or explain the order passed by this Court in previous
proceedings between the parties. The High Court can only follow
the dictum of this Court which is binding on it. Accordingly, the
preliminary objection taken by the respondents regarding the
maintainability of writ petition under Article 32 of the Constitution
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS.
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by similarly placed persons directly filed before this Court to
assail the impugned order dated 2.3.2020, which is also subject
matter of second set of contempt petitions is not sustainable.
[Para 56][340-C-H]
2.1 The grievance of the petitioners is that the unambiguous
direction given by the High Court and upheld by this Court was
to reinstate the petitioners on the same position with full back
wages. The respondents were, therefore, obliged to issue order
of reinstatement with continuity of service and back wages. The
argument is attractive at the first blush, but on deeper scrutiny
of the orders passed by the High Court and finally by this Court,
it is noticed that the direction is limited to permit the petitioners
to work on the posts of Assistant Engineer (Civil), Assistant
Engineer (Electric/Mechanical) and Assistant Engineer
(iHighComputer Science and Electronics and Communication/
Electrical and Electronics) and to pay them regular salary month
by month as and when it becomes due and payable to them. On
similar lines, the High Court disposed of another writ petition
challenging the termination order passed by the respondents. In
these orders, the expression used by the High Court is "to permit
the petitioners to work on the concerned posts and to pay them
regular salary as and when the same accrues to them". Perusal
of order passed in review petition also does not indicate that the
High Court expressly directed reinstatement of petitioners with
continuity of service and back wages, as such. Even in the decision
of this Court dismissing the appeals filed by respondents, no such
direction has been issued. The limited direction is that the
respondents must first act upon the decision of the High Court
dated 28.11.2017 and only thereafter proceed in the matter in
accordance with law by passing a fresh, reasoned order. [Para
58][341-C-G; 342-C-E]
2.2 After cogitating over the orders passed by the High
Court and this Court, it becomes amply clear that the High Court
had quashed and set aside the first termination order solely on
the ground that it was passed in violation of principles of natural
justice and further observed that the selection as a whole was
not liable to be cancelled without undertaking an exercise to
separate the tainted candidates from the untainted. While so
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observing, it was made clear that the respondents were free to
pass a fresh, reasoned order in accordance with law. [Para 59]
[342-E-F]
2.3 The explanation offered by the respondents is accepted
that going by the text of the orders passed by the High Court and
this Court, it was open to the respondents to issue order to reengage the petitioners on the same posts from the date of order
and to pay them regular salary month by month thereafter or as
and when it would accrue to them. The orders passed by the
High Court and this Court, do not contain explicit direction to
reinstate the petitioners with continuity of service and back wages
as such. Instead, the expression used is only "to permit the
petitioners to work on the posts" which were held by them at the
time of their termination and "to pay them regular salary month
by month" and "as and when the same accrues to them". Thus
understood, it is not a case of wilful disobedience of the orders of
the Court. Arguendo, the interpretation as propagated by the
petitioners of the stated orders dated 28.11.2017 passed by the
High Court and 16.3.2018 of this Court, is a possible view. Being
another possible view, the benefit must then be given to the
respondents. For, it would certainly not be a case of wilful
disobedience. It is well settled that contempt action ought to
proceed only in respect of established wilful disobedience of the
order of the Court The limited direction given by the High Court
and not disturbed by this Court was to permit the petitioners to
work on the concerned posts and to pay them regular salary as
and when the same accrues to them, the plea under consideration
needs to be recorded only to be rejected. The case at hand does
not qualify the test of contumacious, much less wilful disobedience
of the order of the Court by the officers of the respondents as
such. [Paras 60, 61, 62, 63, 64][342-G-H; 343-B-D; 345-B-C]
Sushila Raje Holkar v. Anil Kak (Retired) (2008) 14
SCC 392 : [2008] 7 SCR 278; State of Bihar v. Rani
Sonabati Kumari AIR 1961 SC 221 : [1961] SCR 728;
Maruti Udyog Limited v. Mahinder C. Mehta & Ors.
(2007) 13 SCC 220 : [2007] 10 SCR 933; Ram Kishan
v. Tarun Bajaj & Ors. (2014)16 SCC 204 : [2014] 1
SCR 538; Director of Education, Uttaranchal & Ors.
v. Ved Prakash Joshi & Ors. (2005) 6 SCC 98 : [2005]
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS.
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1 Suppl. SCR 620; K.G. Derasari & Anr. v. Union of
India & Ors.(2001) 10 SCC 496; Deepali Gundu
Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.
Ed.) & Ors. (2013) 10 SCC 324 : [2013] 9 SCR 1; P.
Karupaiah (Dead) through Legal Representatives v.
General Manager, Thruuvalluvar Transport Corporation
Limited (2018) 12 SCC 663 : [2017] 10 SCR 557 -
relied on.
3.1 The second set of contempt petitions, emanate from
termination order issued by the respondents. These petitions
essentially proceed on the allegation that the respondents
committed wilful disobedience of the order of this Court in not
affording prior opportunity of hearing to the petitioners and
similarly placed persons despite express direction contained in
the said order. The Court had set aside the termination order
issued by the respondents, solely on the ground that it was in
violation of principles of natural justice. At the same time, liberty
was given to the respondents to pass a fresh order in accordance
with law including by undertaking exercise of segregating the
tainted from the untainted candidates. Indeed, the Court expected
that before taking any precipitative action against the petitioners,
the respondents must afford opportunity of hearing to them. This
observation is contextual. It would come into play dependent upon
the opinion eventually formed by respondents after due
consideration of the material collated by them to distinguish the
tainted and untainted candidates, was possible or otherwise. Had
the respondents concluded that it was possible to segregate
tainted from untainted candidates, they would have been obliged
to comply with the directions given by the High Court and restated
by this Court in order dated 15.11.2018, to afford prior opportunity
of hearing to the petitioners and similarly placed persons before
passing fresh, reasoned order. However, from the subject
termination order dated 2.3.2020, which is a speaking order, it is
crystal clear that after due enquiry and taking into consideration
all aspects of the matter, in particular the enquiry reports and the
opinion of the experts including final report of SIT, the
respondents were of the considered opinion that it was not
possible to segregate tainted from the untainted candidates for
reasons recorded in that order. It is subject matter of challenge
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in writ petitions pending before the High Court filed not only by
Assistant Engineers, but also by Junior Engineers, Routine Grade
Clerks and others. In light of the conclusion reached by the
respondents that it was not possible to segregate the tainted from
the untainted candidates, in law, it must follow that the respondents
could annul the entire selection process and pass the impugned
order without giving individual notices to the petitioners and
similarly placed persons. [Paras 65, 66, 67][345-D-E; 346-C-G,
H; 347-A-B]
Union of India & Ors. v. O. Chakradhar (2002) 3 SCC
146 : [2002] 1 SCR 1091; Veerendra Kumar Gautam
& Ors. v. Karuna Nidhan Upadhyay & Ors. (2016) 14
SCC 18 : [2016] 7 SCR 223; Vikas Pratap Singh &
Ors. v. State of Chhattisgarh & Ors. (2013) 14 SCC
494 : [2013] 10 SCR 1114 - relied on.
3.2 Since the respondents have concluded that it was not
possible to segregate tainted from the untainted candidates
because of the reasons noted in the termination order dated
2.3.2020, in law, there was nothing wrong in respondents issuing
the said termination order without affording prior opportunity to
the petitioners and similarly placed persons. Had it been a case
of even tittle of possibility in segregating the tainted from the
untainted candidates, which exercise the respondents were
permitted to engage in, in terms of the decision of this Court
dated 15.11.2018, it would have been a different matter. In that
case alone, the petitioners and similarly placed persons could
complain of wilful disobedience of the order passed by this Court
dated 15.11.2018. Even the second set of contempt petitions in
reference to the subject termination order dated 2.3.2020 being
in violation of direction given by this Court to afford opportunity
to the petitioners vide order dated 15.11.2018, must fail. [Paras
68 and 69][347-C-F]
3.3 While discharging the show-cause notices issued in the
concerned contempt petitions and disposing of all the contempt
petitions, it is deemed appropriate to relegate the petitioners in
the transfer petition and the writ petition filed in this Court, before
the High Court to pursue their remedy under Article 226 of the
Constitution to assail the order dated 2.3.2020 with further
direction that all petitions involving overlapping issues and
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS.
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referred to in Annexure R-29 of the Supplementary Affidavit or
any other writ petition pending or to be filed, list whereof be
furnished by the parties to the High Court, for being heard
analogously. The High Court is requested to expeditiously
dispose of the writ petitions, leaving all contentions other than
decided in this judgment, open to the respective parties to be
raised before the High Court. The same be decided on its own
merits as per law. Show-cause notices issued in the respective
contempt petitions stand discharged. Contempt petitions are
dismissed; The transfer petition stands rejected, as a result of
which the writ petitions referred to therein will now proceed before
the High Court in terms of this judgment; The writ petition is
disposed of with liberty to the petitioners therein including
applicants in intervention/impleadment applications to pursue
their remedy before the High Court by way of writ petition under
Article 226 of the Constitution, if so advised. That writ petition
be decided on its own merits in accordance with law keeping in
mind the observations made in this judgment along with other
pending or fresh writ petitions involving similar issues; and the
High Court is requested to take up all writ petitions involving
overlapping issues together for analogous hearing expeditiously.
[Paras 71, 72][348-D-H; 349-A-C]
Uttar Pradesh Jal Nigam & Ors. v. Ajit Singh Patel &
Ors., (2019) 12 SCC 285 : [2018] 13 SCR 804; J.K.
Synthetics Ltd. v. K.P. Agrawal & Anr. (2007) 2 SCC
433 : [2007] 2 SCR 60; U.P. State Brassware Corpn.
Ltd. & Anr. v. Uday Narain Pandey (2006) 1 SCC 479
: [2005] 5 Suppl. SCR 609; Haryana Financial
Corporation & Anr. v. Jagdamba Oil Mills & Anr. (2002)
3 SCC 496 : [2002] 1 SCR 621; Union of India & Anr.
v. K.M. Shankarappa (2001) 1 SCC 582 : [2000] 5
Suppl. SCR 117; Union of India v. Ashok Kumar
Aggarwal (2013) 16 SCC 147 : [2013] 12 SCR 629;
M.P. State Coop. Bank Ltd. Bhopal v. Nanuram Yadav
& Ors. (2007) 8 SCC 264 : [2007] 10 SCR 307; Nidhi
Kaim v. State of Madhya Pradesh & Ors. (2016) 7 SCC
615 : [2016] 7 SCR 822; Kunhayammed & Ors. v. State
of Kerala & Anr. (2000) 6 SCC 359 : [2000] 1 Suppl.
SCR 538; Khoday Distilleries Limited v. Sri
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Mahadeshwara Sahakara Sakkare Karkhane Limited,
Kollegal (2019) 4 SCC 376 : [2019] 3 SCR 411; Bihar
Finance Service House Construction Cooperative
Society Ltd. v. Gautam Goswami & Ors. (2008) 5 SCC
339 : [2008] 3 SCR 1137; Sudhir Vasudeva, Chairman
and Managing Director, Oil and Natural Gas
Corporation Limited & Ors. v. M. George Ravishekaran
& Ors. (2014) 3 SCC 373 : [2014] 4 SCR 27; Dinesh
Kumar Gupta v.United India Insurance Company
Limited & Ors. (2010) 12 SCC 770 : [2010] 13 SCR
599; Kapildeo Prasad Sah & Ors. v. State of Bihar &
Ors. (1999)7 SCC 569 : [1999] 1 Suppl. SCR 725;
Mohd. Iqbal Khanday v. Abdul Majid Rather (1994) 4
SCC 34 : [1994] 3 SCR 396; Romesh Thappar v. State
of Madras [1950] SCR 594; Manohar Lal (Dead) by
LRs. v. Ugrasen (Dead) by LRs.& Ors. (2010) 11 SCC
557 : [2010] 7 SCR 346; Union of India & Ors. v. S.K.
Kapoor (2011) 4 SCC 589 : [2011] 3 SCR 906; Nisha
Devi v. State of Himachal Pradesh & Ors. (2014) 16
SCC 392 : [2014] 3 SCR 483; Indian Institute of
Information Technology, Deoghat Jhalwa, Allahabad
& Anr. v. Dr. Anurika Vaish & Ors. (2017) 5 SCC 660 :
[2017] 3 SCR 691; P.N. Kumar & Anr. v. Muncipal
Corporation of Delhi (1987) 4 SCC 609 : [1988] 1 SCR
732; Kanubhai Brahmbhatt v. State of Gujarat 1989
Supp (2) SCC 310 : [1987] 2 SCR 314; Kunga Nima
Lepcha & Ors. v. State of Sikkim & Ors. (2010) 4 SCC
513 : [2010] 3 SCR 787; Confederation of All Nagaland
State Services Employees'Assn.& Ors. v. State of
Nagaland (2006) 1 SCC 496; Amrit Lal Berry v.
Collector of Central Excise, New Delhi & Ors. (1975)
4 SCC 714 : [1975] 2 SCR 960; Dharampal Satyapal
Limited v. Dy. Commissioner of Central Excise, Gauhati
& Ors. (2015) 8 SCC 519 : [2015] 6 SCR 437; Union
of India & Ors. v. Rajesh P.U. Puthuvalnikathu & Anr.
(2003)7 SCC 285 : [2003] 1 Suppl. SCR 883; Rajesh
Kumar & Ors. v. State of Bihar & Ors. (2013) 4 SCC
690 : [2013] 4 SCR 753; K. Channegowda & Ors. v.
Karnataka Public Service Commission & Ors. (2005)
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS.
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12 SCC 688 : [2005] 4 Suppl. SCR 126; Modern
Dental College and Research Centre & Ors. v. State of
Madhya Pradesh & Ors (2016) 7 SCC 353 : [2016] 3
SCR 579; Inderpreet Singh Kahlon & Ors. v. State of
Punjab & Ors. (2006) 11 SCC 356 : [2006] 1 Suppl.
SCR 772; Girjesh Shrivastava & Ors. v. State of Madhya
Pradesh & Ors. (2010) 10 SCC 707 : [2010] 12 SCR
839; Joginder Pal & Ors. v. State of Punjab & Ors.
(2014) 6 SCC 644 : [2014] 6 SCR 383; Purnendu
Mukhopadhyay & Ors. v. V.K. Kapoor & Anr. (2008)
14 SCC 403 : [2007] 11 SCR 462 - referred to.
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referred to
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referred to
Para 31
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[2019] 3 SCR 411
referred to
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[2014] 4 SCR 27
referred to
Para 31
[2014] 1 SCR 538
referred to
Para 31
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referred to
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E
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[1999] 1 Suppl. SCR 725
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[1994] 3 SCR 396
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Para 35
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referred to
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referred to
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referred to
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Para 42
[1987] 2 SCR 314
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referred to
Para 43
(2006) 1 SCC 496
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Para 46
[1975] 2 SCR 960
referred to
Para 46
[2015] 6 SCR 437
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Para 46
[2003] 1 Suppl. SCR 883
referred to
Para 49
[2013] 4 SCR 753
referred to
Para 49
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referred to
Para 49
[2016] 3 SCR 579
referred to
Para 50
[2006] 1 Suppl. SCR 772
referred to
Para 51
[2010] 12 SCR 839
referred to
Para 51
[2014] 6 SCR 383
referred to
Para 51
[2007] 11 SCR 462
referred to
Para 51
[2008] 7 SCR 278
relied on
Para 61
[1961] SCR 728
relied on
Para 61
[2007] 10 SCR 933
relied on
Para 61
(2001) 10 SCC 496
relied on
Para 62
[2017] 10 SCR 557
relied on
Para 63
[2013] 10 SCR 1114
relied on
Para 67
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS.
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SUPREME COURT REPORTS
[2021] 5 S.C.R.
INHERENT JURISDICTION : Contempt Petition (Civil) Nos.
625-626 of 2019. In Civil Appeal Nos. 11017-11018 of 2018.
From the Judgment and Order dated 15.11.2018 of this Hon'ble
Court in Civil Appeal Nos. 11017-11018 of 2018.
With
Contempt Petition (Civil) Nos. 642-643 of 2019 in C.A. Nos.
11017-11018 of 2018,
Contempt Petition (Civil) Nos. 671-672 of 2019 in C.A. Nos.
11017-11018 of 2018,
Contempt Petition (Civil) Nos. 395-396 of 2020 in C.A. Nos.
11017-11018 of 2018,
Contempt Petition (Civil) Nos. 408-409 of 2020 in C.A. Nos.
11017-11018 of 2018,
Contempt Petition (Civil) Nos. 598-599 of 2020 in C.A. Nos.
11017-11018 of 2018,
Contempt Petition (Civil) Nos. 669-670 of 2020 in C.A. Nos.
11017-11018 of 2018,
Contempt Petition (Civil) Nos. 671-672 of 2020 in C.A. Nos.
11017-11018 of 2018,
W.P. (C) No. 491 of 2020 and T.P. (C) No. 1209 of 2020.
Mukul Rohatgi, Ms. Meenakshi Arora, Ravindra Raizada, Vikas
Singh, Sr. Advs., Mohd. Nizam Pasha, Ms. Ranjeeta Rohatgi, Ms. Samten
Doma, Rajeev Kumar Dubey, Saurav Singh Chauhan, Ashiwan Mishra,
Kamlendra Mishra, Ms. Vanshaja Shukla, Mritunjay Singh, Ms. Anuja
Pethia, Gaurav Mehrotra, Talha Abdul Rahman, Utsav Misra, Abhineet
Jaiswal, Mohd. Shaz Khan, Udit Atul Konkanthankar, Kumar Shivam,
Mayank Sapre, Mohd. Atif, Rohit Anil Rathi, Nizam M. Pasha, Mrs.
Pragya Baghel, Ms. Sansriti Pathak, Ms. Sakshi Kakkar, Advs. For the
appearing parties.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. These cases essentially assail the orders dated 4.12.2018 and
2.3.2020 issued by the Chief Engineer (A-2-1), Uttar Pradesh Jal Nigam,
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Lucknow1, pursuant to the judgment of this Court dated 15.11.2018 in
Civil Appeal Nos. 11017-11018/20182.This Court by the aforesaid
judgment, had directed the Uttar Pradesh Jal Nigam (the respondent
corporation) to comply with the judgment of the High Court of Judicature
at Allahabad3 dated 28.11.2017 in a batch of writ petitions (leading case
being Writ-A No. 37143/2017) and pass a fresh, reasoned order.
2. In pursuance of the aforementioned decision of this Court, the
Chief Engineer issued order dated 4.12.2018, thereby reengaging the
petitioners and other appointees to their previous place of posting.
However, with a caveat that the said appointment was subject to the
liberty granted by this Court and that no arrears would be paid by the
respondent corporation. The order of the Chief Engineer dated 4.12.2018
is reproduced thus:
"The order dated 11.8.2017 passed by the Chief Engineer (A-21) U.P. Jal Nigam Lucknow has been set aside by Hon'ble High
Court Allahabad by its order dated 28.11.2017 in W.P. No. A37143/2017 and Review Application No. 2/2018 is also rejected
by Hon'ble High Court in its order dated 25.07.2018. The Hon'ble
Supreme Court has upheld [sic] the above order passed by
Hon'ble High Court in Civil Appeal No. 11017-11018/2018 titled
as U.P. Jal Nigam & Ors. v. Ajit Singh & Ors.
In the above context you are expected to perform your duty
at your previous posting place within 15 days from issuing
of this order.
That it is being clarified that the said appointment will be
subject to the liberty granted to Nigam, by the Hon'ble
Supreme Court of India vide judgment dated 15.11.2018 in Civil
Appeal No. 11017-11018/2018. The concerning paragraphs are
extracted below:
"15. In view of the above, the challenge to the impugned judgment
dated 28th November, 2017 and 25th July, 2017 must fail but with a
clarification that the competent authority is free to pass a fresh,
reasoned order in accordance with law.
1 For short, "the Chief Engineer" or "respondents"
2 Uttar Pradesh Jal Nigam & Ors. v. Ajit Singh Patel & Ors., (2019) 12 SCC 285
3 For short, "the High Court"
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS.
[A. M. KHANWILKAR, J. ]
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16. We may not be understood to have expressed any opinion
either way on the merits of the course of action open to the
appellants against the respondents including against the other
appointees under the same selection process. All questions in that
behalf are left open."4
That no Arrears prior to the fresh date of appointment will
be granted by Nigam."
(emphasis supplied)
3. This order, according to the contempt petitioners, is in the teeth
of the decision of this Court dated 15.11.2018 and, therefore, the
respondents be proceeded for having committed wilful disobedience of
the order of this Court.
4. Thereafter, in terms of the liberty granted by this Court in the
aforementioned judgment, the respondent corporation passed a fresh
order dated 2.3.2020, annulling the appointment of the petitioners and
similarly placed Assistant Engineers. In arriving at the fresh decision,
reliance was placed upon the two internal inquiry reports dated 29.5.2017
and 7.7.2017; expert reports - of IIIT Allahabad dated 11.9.2018 and
IIT Kanpur dated 15.9.2018; CFSL report dated 11.12.2019; and
recommendation made by the Special Investigation Team (SIT) in its
final report dated 22.1.2020 received by the respondent corporation on
18.2.2020, to cancel the recruitment process due to corruption involved.
The two expert reports given by Assistant Professor at IIT Kanpur and
Associate Professor at IIIT Allahabad dated 15.9.2018 and 11.9.2018
respectively, pointed out that the audit trail/checksum and time stamps
of the candidates were not made available and therefore, segregation of
tainted and untainted candidates was not possible, in absence of primary
data. The operative portion of the order dated 2.3.2020 is reproduced
below:
"20.
.....
After the investigation conducted by the department
in the case, the reports of both the experts, the relevant
recommendation/conclusion of the SIT investigation and
after examination of the records, it has become clear that
the selection process in question is void ab initio for the
above reasons.
4 extracted in paragraph 14 ibid
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In view of the above, the office memo number 08/A-2-1/
2151-0201/17 dated 03.01.2017, memo no. 09/ A-2-1 / 2151-0201/
17 dated 03.01.2017 and memo number 10/A-2-1/2151-0201/17
dated 03.01.2017 is cancelled with effect from the date of issue
i.e. date 03.01.2017 and the appointments in question are declared
void from the said date.
Due to the cancellation of the above office memorandum
issued on dated 03.01.2017, the orders which were circulated on
04.12.2018 to contribute again are effectively annuled.
The Assistant Engineer appointed under this process will
get the protection of salary allowances etc. received so far and
no recovery will be made from them. In the discharge of
departmental responsibilities, the administrative and financial
functions performed by them so far will remain valid."
(emphasis supplied)
5. This order has been assailed by the writ petitioner(s) directly in
this Court by way of Writ Petition (Civil) No. 491/2020. We are informed
that the same order has been assailed by similarly placed persons governed
by the impugned order by way of writ petition(s) before the High Court
of Judicature at Allahabad and also at its Bench at Lucknow. Some of
them have filed transfer petition before this Court, to transfer their Writ
Petition No. 13083/2020 (S/S) filed at Lucknow Bench of the High Court
and to hear it along with contempt petitions pending in this Court involving
overlapping issues. Accordingly, the assail in these petitions is to the
aforementioned order dated 4.12.2018, as well as, order dated 2.3.2020
passed by the respondents.
6. In Contempt Petition (C) Nos. 625-626/2019, 642-643/2019
and 671-672/20195, the grievance of the petitioners is that the respondents
have appointed them afresh instead of reinstatement with continuity of
service along with arrears of wages and thus, have wilfully violated the
direction of this Court in judgment 15.11.2018, to give full effect to the
High Court's judgment dated 28.11.2017.
7. Whereas, in Contempt Petition (C) Nos. 395-396/2020, 408409/2020, 598-599/2020, 669-670/2020 and 671-672/20206, the grievance
5 Collectively, "contempt petitions against non-payment of arrears"
6 Collectively, "contempt petitions against termination"
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS.
[A. M. KHANWILKAR, J. ]
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is that the order of the respondents dated 2.3.2020, have annulled the
appointment of the petitioners, without affording opportunity of hearing
to the petitioners in violation of the judgment of this Court dated 15.11.2018
in Civil Appeal No. 11017-11018/2018.
8. In W.P. (C) No. 491/2020, the petitioners have prayed for
quashing of order dated 2.3.2020 passed by the respondent and to
reinstate the petitioners with continuity of service and full back wages.
While, in T.P. (C) No. 1209/2020, the petitioners seek to withdraw and
transfer to this Court, Writ Petition (C) No. 13083/2020 (Service Single),
which is pending before the Lucknow Bench of the High Court, as the
order dated 2.3.2020 (impugned therein) is already subject matter in
second set of contempt petitions including W.P.(C) No. 491/2020 before
this Court.
CONTEMPT PETITIONS AGAINST REENGAGEMENT
WITHOUT CONTINUITY OF SERVICE AND ARREARS OF
BACK WAGES VIDE ORDER DATED 4.12.2018:
9. The factual background leading to filing of these contempt
petitions is that the respondents, vide order dated 11.8.2017, annulled the
recruitment process pursuant to which the petitioners were employed,
thereby terminating services of the petitioners. The said order was
challenged before the High Court and came to be set aside by way of
common judgment dated 28.11.2017. The above judgment also directed
that the petitioners be permitted to work and be paid regular monthly
salary. The relevant extract of this decision is reproduced thus: -
".....
In view of the above, we are of the considered opinion that
the impugned order dated 11.8.2017 has been passed in violation
of principles of natural justice without issuing notice and without
affording opportunity of hearing to the petitioners, no exercise
was undertaken to distinguish the case of tainted and non-tainted
candidates to arrive at the conclusion while passing the impugned
order as such the impugned order dated 11.8.2017 is not sustainable
and is liable to be set aside.
Accordingly, the impugned order dated 11.8.2017 passed
by the Chief Engineer Jal Nigam (Annexure-9 to the writ petition)
is here by set aside.
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The writ petitions succeed and are allowed with the further
direction to permit the petitioners to work on the post of
Assistant Engineer (Civil); Assistant Engineer (Electrical/
Mechanical) and Assistant Engineer (Computer Science/
Electronics and Communication/Electrical and Electronics)
and to pay them regular salary month by month with the
liberty to the respondents to pass a fresh, reasoned order after
providing opportunity of hearing to the petitioners and other
affected parties on the basis of observations made above.
No order as to costs."
(emphasis supplied)
10. Another writ petition filed by some of the petitioners before
Lucknow bench of the High Court, being Service Bench No. 19863/
2017 was also disposed of on 12.12.2017, in terms of the judgment dated
28.11.2017, in the following words:
".....
Accordingly, this writ petition is also allowed in terms of the
judgment and order dated 28.11.2017 passed by this Court at
Allahabad in the bunch of Writ Petitions, leading Writ Petition
being Writ-A No. 37143 of 2017, Ajit Singh Patel and others vs.
State of U.P. and others with a further direction to permit the
petitioners to work on the post of Assistant Engineer (Civil),
Assistant Engineer (Electrical/ Mechanical) and Assistant
Engineer
(Computer
Science/
Electronics
and
Communication / Electrical and Electronics) and pay them
regular salary as and when the same accrues to them with a
liberty to the respondents to pass a fresh reasoned order after
providing opportunity of hearing to the petitioners and other parties
on the basis of the observations made by this Court at Allahabad
in the judgment and order dated 28.11.2017 (supra).
....."
(emphasis supplied)
11. Upon failure of the respondents to act upon the directions
passed in judgment dated 28.11.2017, the petitioner(s) filed Contempt
Application (Civil) No. 6218/2017 before the High Court. Meanwhile,
the respondents preferred SLP (C) Nos. 5410-5419/2018 before this
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS.
[A. M. KHANWILKAR, J. ]
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Court assailing the judgment dated 28.11.2017. The said special leave
petitions were disposed of by an order dated 16.3.2018, holding that the
respondents may approach High Court for a liberty to re-work the answer
sheets on the basis of corrections. The said order reads thus: -
"ORDER
Mr. Rakesh Dwivedi, learned senior counsel appearing for
the petitioners, points out that the petitioners having found out that
there were defective questions and incorrect answer keys, the
High Court should have permitted the petitioners to re-work the
merit list. He submitted that the High Court has gone wrong in
insisting for an individual notice in the factual matrix of this case.
In this regard he has also placed reliance on a judgment of this
Court in Vikas Pratap Singh and Others v. State of Chhattisgarh
and Others, reported in (2013) 14 SCC 494.
Mr. Mukul Rohatgi, learned senior counsel appearing for
the respondent(s), however, points out that whether the questions
were defective or key answers were incorrect are disputed
question and, therefore, liberty should be granted to the respondents
to participate in the inquiry. He further submits that the decision
of this Court referred to by the learned senior counsel for the
petitioners may not apply to the facts of this case.
Be that as it may, having gone through the impugned
judgment, we do not find that the door is yet closed. It is
for the petitioners, if they are so advised, to approach the
High Court itself for a liberty to re-work the answer sheets
on the basis of the corrections, in case the High Court is
also of the view that the corrections need to be made.
The special leave petitions are, accordingly, disposed of.
Pending application(s), if any, shall stand disposed of."
(emphasis supplied)
12. Upon disposal of the said special leave petitions, the respondents
furnished an undertaking to the High Court in the Contempt Application
(Civil) No. 6218/2017 that the judgment dated 28.11.2017 will be complied
with on or before 15.5.2018. In the meantime, the respondents preferred
a Review Application No. 2/2018 in Writ - A No. 37143/2017, wherein
the High Court, vide order dated 25.7.2018, refused to interfere with the
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judgment dated 28.11.2017 and reiterated that it was open to the
respondents to pass a fresh order. This order dated 25.7.2018 reads
thus: -
"The Managing Director, U.P. Jal Nigam, Lucknow and the Chief
Engineer, U.P. Jal Nigam, Lucknow have both filed an application
for the review of the judgement and order dated 28.11.2017 by
which a bunch of these writ petitions were finally decided.
The submission of learned Advocate General of State of U.P. is
that the applicants be granted liberty to segregate tainted and
untainted candidates in passing a fresh order for which liberty has
been given.
The order impugned in the writ petitions was of 11.08.2017 passed
by the Chief Engineer, Jal Nigam which cancels the entire
selection.
In allowing the petition, we have held that the order
impugned in the writ petition has been passed in violation
of principles of natural justice and that the selection as a
whole was not liable to be cancelled without undertaking
any exercise to separate the tainted candidates from the
untainted one's.