UNION OF INDIA v. SATISH CHANDRA SHARMA (2)

Citation: [1980] 2 S.C.R. 298

Court: Supreme Court of India

Bench: V.R. KRISHNA IYER, R.S. PATHAK

Case summary

Code of Civil Procedure 1908 (V of 1908) Order 39 rule 2 (3)-Suit by railway employe~ln injunction application court ordering reinstaternenl in .

Judgment text

298 A UNION OF INDIA v. SATISH CHANDRA SHARMA November 27, 1979 B (V. R. KRISHNA lYER AND R.. S. PATHAK, JJ. ] Code of Civil Procedure 1908 (V of 1908) Order 39 rule 2 (3)-Suit by railway employe~ln injunction application court ordering reinstaternenl in . tervia--Non-compliance by department-Court ordering attachment of department property and officers be sa~t to civil jail-Property for artachmmt 11(>1 sptdfied, contemner for detenrion not named---$uch order whether valid. c The respondent a railway employee was proceeded against by the depe. i-t. m&nt for misconduct. He did not respond to the 'show-cause' notice issued to bim and when the disciplinazy proceeding$ proceeded ex-parte he filed a suiL tor a declaration of immunity and permanent injunction against further departmental action.

He also moved an application for an ad interim injunction to restrain the department from affecting his position in service by continuing the discipli- D nary enquiry and to continue to pay his full salary. After bearing, the Mtmaif directed that the respondent bo placed in the same position that ho hold trior to the commencement of the departmental enquiry in the matter of· pay, privileges and all other perquisites that he availed and enjoyed. The department appealed against this order, and awaited the decision in the District Court before implementing the direction for re-instatement. E In the meanwhile the respondent filed an application undc:r Order 39 rule 2(3) of the Code of Civil Procedure for disobedience of the injunction order. The trial court finding that there was non-compliance with the Munsirs .

order, directed 15 days time for compliance with the said order and on fallure theteof, directed that the department shall be visited with the order of attachment of its property and its officers be sent to the civil jail. F An unsuccessful appeal and an unrewarding rewuon was the lot C\f the department The High Court made an observation-cum-direction that as the Munsif could not proceed with tbe proct'Wings for disobedience of the court's order, it would be for the Munsif,concerned to name the officer concerned who is required to be sent to jail and to give details of the property to be attached, for the purpose of compelling compliance with the court's order. Allowing the appeal to this Court, HElD :1. 1. The High Court was in error in leaving it to the trial court to designate the names when it actually issued the ministtrial order to execun. its decretal order.

Nameless humans cannot be whisked off to prison even~ the nam'e of contempt by insertion of the name after the judgment is delivered. [304 F] II _2. A government servant of the Union of India who had been removed from service for misconduct could not be reinstated with full back pay immediately the order was made by the Court. It had to be communicated to UNION v. S. C. SHARMA (Krishna lyer, !. ) 2 99 ~arious officers, orders haJ to be made at various levels, flies had to move aud ~.... A notings made for gc. ~tation before implementation. All this takes time · d when the court order ~s ev~ntually effectuated, the salary of the officer ~ill~( com~c, have. to be patd wllh effect [rorr; the original date of the impugned tllfeat of ac/1011• •To ~roceed ~o ~urusb m haste without pausing to realise how sovernment functtons ts not fatr tn this drastic jurisdiction where personal freedom is in peril. [305 B·D] . '• B 3.

The constitutional sanctity of liberty and protection of property will become chimerical and the processual law will hang limp if·the substantive order is silent and identifying the offender is left over as a ministerial measure. [304 F] . 4. Whero liberty and property are to be deprived it is fundamental th~t vaguencs~ is a fatal vice even if the i">. ~uing a-uthority be the court. {302 G} c Ia the instant case, the orders pa. ~cd by the . Mull. ';if and the High Court i , keep identity of tbc key persons and properties in uncert3inty. For this rensoq ;Jane, the order. ~ are vulnerable- against both the att3chment of un... peciticd property and detention of unnamed contemners. · (30-l C-G1 5. The law, in tbc area of contempt of court. must avoij' the extremes of hyper-reactivity to m~rgin:tl indifference to judicial authority out of pragm:1ti: D difficulties. [300 E} 6. The nuid, yet valid, concept of 'contempt of ~;curt' keeps juds. :s r.

nJa rhe rule of law; for personal liberty is protected by a processual nrmour, even if its deprivation be the product of the judicial process. [300 E] 7. The contempt power should be kept sheathed and tbe sword shouit.! bo E urav. n only sparingly if the court i~ convin~cu that there bas been wilful Jcfian.. :" C•r disobedience. [306 C) 8. Once there ill clear eviJ. :nce of active obedience, coupled with cxpre. ;sior: uf n:grc:t, Jcl.. tycJ though the c. :'Ompliance be due to the inevitublc time-b:; induced by tht. > paper· logg'. :d procedures, the court may ,be clcmcnL [306 D] · I CrvTL APPELLATE JURISDICTION : Civil Appt:al No. 2031 of 1979. F Appeal by Special Leave from the Judgment and O~dcr . d:,tted ~0·1·79 of the Rajasth:. tn High Court (Jlipur Dc:nch) at Jarpur m S. B. Revi')ion No. 112/76. I• Soli J. Sur(lbje~. Solicitor Gt•m•r,Jl, Sublwllll Markendya and Giri1f1 Cha11dra for the Appellants. G flalakri. 1/uw Gaur for the! Rc:~pvnJc:nt.

'Inc Jud"mcnt of the Court was delivered by ;:;> KRISHNA }YCR, J. -An oJJ case of sentence o( three months'. civi! imprisonment and attachment of assets of the Central Government anJ II two of its officers for Jdault in instant reinstatement of a ~ailway In-;pcctor removed from service for misconduct occasions this nppcal by ~pedal k::wc. .... ~ ·- . [1980] 2 S. C. R. • . SUPREME COURT REPORTS 300 A The Court System is neither a cloistered virtue ~or a self:righteous process and readily re-examines, in its appellate crucible, the JUdgments rendered at lesser levels even if the subject-mattc. r ? c, as here, a~leged . b d' . r 'udicial order.

Justice is not hubnstic and truth tnumps dISO C Jence 0 aJ • •h h ' · ' · · · n And so this Court in keeping wit sue an UlYigiiaby SeIf-crlliCISl • , , • • • • • tive perspective, must review the pumtlve directive of the tnal co~rt, B affirmed upto the High Court but challenged before us, that the Umon of India and its officers in the Railway Department-the appellantsdo suffer distraint of property and imprisonment of person for the contempt of its authority by non-compliance with its order of injunction. This case disturbs us $Omcwhat and constrains us to go to the basics in a certain branch of the jurisprudence of r. ontempt of court. c As will presently appear, the synthesis of two seemingly antithetical creeds, both vital to our Republic is the key to the crucial issue projected by rh:s appeal where disobedience of a mat111Jtnry injunction to retain in service, pende11Ze /ize, the respondent, a railway insp.!

ctor, regardless d the disciplinary proceedings which tiad by then allegedly ,/ D f culminated in his exi~t from service. The courr shall neither be imperious nor he obsequiou~. The law, in the area of contempt of court, ' I • must avoid the extremes of hyper-reactivity to marginal indifference to ,judicial _authority out or pragmatic difficulties and or hypo-respect for court commands in a ca\ ~krcc is put in peril ()f mcarccrat! On. Rcahstng thts fatal . Jbw, the IIir. h Courc sought to repair the y:~wning tear by making • tl11! , following obwrv:~tiun-cum-dircction : . Th. : karnct! Munsif Magistrate, who passed tht! earlier n ' lkr on J. :wuary 5, 1976 could not proceed with the pro- 111 ~. :~:nl:ng-> f0 r sending 'the petitioners concerned to Civil Jail (1980] 2 S. C. R. SUPREME COURT REPORTS 304 and also of attachment of the prop~rty. It would be f~r A · ·r ed to name the officer concemed who ts .. , I the Munst concern . . ' . .

'd I b sent to Jail and further to gn•e details of the reqmrc o e . f ll' property to be attached for the purpose ~ c. ompe mg compliance as per finding already given m . Jlldgmellt dared January 5 1976 as modified in appeal. ' (emphasis addedJ B The court was relentless even when informed that the payment o[ salary pursuant to the order passed by the Hi~h Court ~a~ oalready been made. The concluding portion of the Htgh Courts ~udgmcnl stated that the Munsif concerned should take prompt action ''for executing his order in respcc~ of sending concerne~ offic~r to Jai: and c the alfac! lment of the property concerned as m. ;::ottoned m his j\ldgment .... " Both the orders keep the identity of the k. cy pcrsons and properties in uncertainty. ·, We arc a little startled that a court in the contempt jurisdiction should deprive the personal liberty of a person without naming in D the order whom the Court's bailiff should take into custody or the jail authorities should ~ccive.

Equally clearly, how could property be taken without its being· particulariscd in the judgment, disregarding procedural obligations? It is· not as if without hearing the ollicer to be jailed and his case ag. aimt detention considered, the Munsif giv~· E ad hoc details of property to be attached without hearing the owner thereof as to his version about why his property should not be touched. ••r I ~ The constitutional sanctity of liberty and the (then) protcction o[ pro- 1. •, perty will become chimerical and the processual law will hang limp ~.. , a, if the substantive order is silent and identifying the oticn~h:r is t. :ft over \ as a ministerial measure. · The High Court was in error in. leaving it F to the trial court tO' designate such names when it actually issued the ministerial order to execute its decretal order. Namckss humans cannot be whisked o! I to prison even in the nnmc of contempt by insertion of the name after the judgment is delivered.

Natural justice is a pervasive doctrine integral to proccssual fair-play in Indian jurisprudence. For this reason alone, the extent order under challenge is G vulnerable-against both the atl~tchmcnt of unspecified property and detention of unnamed contemners. · ln~cpcndcnlly of this invalidatory circumstance, it is apparent that ; l~ere ~~ no ~ound for judicial indignation once the (acts are appre- Ciated. tn thctr realistic setting. l11e order of injunction was road" ~y ·n the tn~l. court ~? 15-4-74 and brought before the High Court where the revtst? n. pctt~lon was dismissed on 3-1-1979. Strictly speaking, the order of Jn)Uncllon hau not been stayed and should have been obeyed. :,!.. " ' UNION V. S. C. SHARMA (Krishna l yer, J. ) 305 Jt is no excuse to say that when appeal and revision pend l'ftr t' ' . . . , 11~a tv~. : )lopes lull pcopIc mto msouc1ancc. While this is not prudent · · .... . . d . b . , l1 IS component . m JU gmg a out ob! >LIO':lte non-compliance.

To institute a proceeding for disobedience of an injunction commanding reinstatement of a government servant purportedly removed from service by . th~ higher officers of ~he Railway, together with payment of salary for . prior periods, is a stul~ification of the jurisdiction, if sufficient time i;; B • not givtn. A little touch of realism would have easily convinced the J{igh Court that a government scn. "Jnt of the Union of India who had been removed from service for misconduct could not be reinstated with full back pay immediately the order was made by the Court. It had to be communicated to various officers, orders had to be made at c various levels, files had to move and notings made for gestation before implcmcnt'J. tion. All this takes time and when the court order is f eventually effectuated, the salary of the officer will. of ·course, have to be paid with effect from the origi11ul dCite of the impugned threat of lJCtion.

To proccell to punish in haste without ·pausing to realise · how government functions is not fair ! n this l! rlsti;: jurisdiction where D personal freedom is in peril. Th. : de5cription of ib processes, as prevalent in the days of Lord Curzon, holds good to-day. Here arc his impat. icnt words dipped in pungent ink: I •• . . . . the administration had b~comc ponJcrous. like an E ckphant-'very stately, very pnwcrful, with a high standard of intelligence, but with a regal slowness in ·it. s g'. lit' "(') ''Round and rounJ, like ~he diurnal revolution of the earth, went the file, stately, solemn, sure an? slow: and now in due season, it has completed its orb1t, and I am F invit~d to register the concluding stagc. "e) .. We arc in no mood to condone w. ilful procrastination n~r su[c~ wantot~ ~>tagmtion in Admjnistration as a ground for default 'tnhcobkcy~lncgvacdoeurrs 1 bosses nor c c ·· <>rders. The Law docs not resp!.! c~ azyh be~ brou"ht to our notice. ~c1·cs of ~\lllt as ~.

;n ~ ' G I nut no proof of that ! ipc • ~ ea is 3. sine qua non. • Mere inaction has no long m1lcage where mms r . ourt's order holding the appellants in We, therefore, regard ,the . c , bl ~nno;ed by absence of instant contempt, a hasty measure, p1ob. l Y . . . 8 I • were ready to be paid and the necessary cheque bad already beeP drawn. We sec no inclination on the part of the Governmcnt of India to adopt a challenging attitude against the court:s writ. It is wtH- ~nown that the contempt power should be kept sheathed and the sword . ' should be drawn only sparingly if. the court is convinced that there ha~ been wilful defiance or disobedient:~. Moderation knds dignity to c power and we feel that the facts of the present case far fro{ll call fur any stronger step than an admonition to comply within a realistic spell of time and stiffer action thereafter. We do not take the view that the Union of lndia shouJd be shown undue indulgence or its oflictr; singular solicitude.

But once there is dear evidence of active obedience, coupled with expression of regret dcl~ycd though the compliance b. : due to the inevitable time-lag induced by paper-Jogged procedures, the: court may be clement. Here, compliance anJ contrition arc now · present. In these circumstanct-s, we allow the appcul and record thc unJcrt~ taldrig of the Union of India, the 1st appellant, th•.. tt the entire ~;1bry due to the rcspondcnt will be paid within one week from tG-day. N. V. K. J . i