Shashi Kant Gupta, J. - (1.) THIS contempt petition has been filed alleging wilful and deliberate violation of the judgment and order of this Court dated 21.3.2006 rendered in writ petition No. 40165 of 1999.
(2.) BEFORE proceeding further, to deal with the matter, it would be appropriate to take note of few orders passed by this Court in this contempt application to indicate that several opportunities were given to the opposite parties since 2006 to comply with the order passed by the writ court. The relevant portions of the orders dated 21.12.2006, 2.2.2007, 19.2.2010, 7.7.2010 and 18.8.2010 are quoted as under: 21.12.2006 The special appeal filed against the judgment has already been dismissed on 29.8.2006. The Court is unable to comprehend as to what instructions are now further required in the matter, when the applicant has himself made a statement before this Court that he will not claim any arrears of salary for the period he has not worked. In the opinion of the Court, the only action, which ought to have been taken by the Commandant, was to receive the undertaking on behalf of the applicant and thereafter proceed to comply with the judgment dated 21st March, 2006 forthwith. Having failed to do so, the opposite party prima facie has committed contempt of the orders of this Court dated 21st March, 2006 as affirmed in special appeal vide order dated 29.8.2006. In view of the aforesaid facts, let the opposite party either proceed to comply with the orders of this Court forthwith or be personally present before this Court on the next date fixed for framing charges. 2.2.2007 Heard learned Counsel for the applicant and perused the Affidavit of Satyendra Kumar. The order dated 17.1.2007 is explicit and clear. The Commandant had no business to over reach the order of this Court. The action of the Commandant is nothing short of contempt. Put up on Wednesday next for framing of charges. 19.2.2010 Heard Sri B.N. Rai, learned Counsel for the applicant and Sri Nikhil Kumar, Advocate on behalf of the opposite party. The Writ Petition of the applicant, challenging the dismissal order was allowed vide judgment and order dated 21.3.2006. The operative portion of the judgment is quoted hereunder - The counsel for the Petitioner has made a statement upon instructions from the Petitioner that in case the Petitioner is reinstated in service, he will not claim any arrears of salary for the period he has not worked. In case, the Petitioner submits an undertaking before the authority concerned, appropriate orders for reinstatement of the Petitioner shall be passed within a period of six weeks from the date of furnishing a certified copy of this judgment alongwith the undertaking by the Petitioner before the disciplinary authority. However, pay of the Petitioner shall be protected and he shall be treated in continuous service, but will not be paid any arrears of salary. Further the period of absence will be treated to be leave without pay. In this view of the matter, the matter is not being sent back for awarding lesser punishment. Writ petition is accordingly allowed. The impugned orders awarding punishment of dismissal and the orders confirming the same are set aside. No order as to costs. The applicant in compliance to the directions contained in the judgment of the Writ Court tendered his undertaking in the form of an affidavit on 3.5.2006. However he was not allowed to join and the applicant was compelled to file this Contempt Application. Ultimately after issue of notice the applicant was allowed to join on 16.1.2007 and since then he has been getting his salary. The dispute is only with regard to the salary from 3.5.2006 till 15.1.2007, as according to the applicant once he had tendered an undertaking, the joining ought to have been allowed forthwith. On the other hand the submission on behalf of the opposite party is that the applicant in his affidavit of 3.5.2006 claimed salary from 21.3.2006 i.e. from the date of judgment and not from the date of the undertaking. According to Sri Nikhil Kumar, learned Counsel for the opposite party the applicant was advised to file a revised undertaking but he did not file any revised undertaking and it is for this reason that the delay was caused in allowing him the joining. Sri B.N. Rai, learned Counsel for the applicant has stated that the applicant is willing to claim salary only from the date of tendering the undertaking and not from the date of judgment and shall file a revised undertaking before the opposite party. It is expected that within a period of six weeks thereafter from the date such revised undertaking is filed the opposite party shall ensure payment of salary to the applicant from 3.5.2006 till the date of joining in January, 2007. List this contempt application after two months. 7.7.2010 Sri B.N. Rai, learned Counsel for the applicant has filed a supplementary affidavit alongwith an application for summoning the opposite party and awarding punishment for deliberate contempt. Along with the said affidavit are annexed show cause notice and a charge sheet issued to the applicant on the ground that in the year 2007 the applicant had filed a Rejoinder Affidavit in the contempt proceedings, which allegedly tarnished the image of the State and the Department. Learned Counsel for the applicant has already not pressed the said rejoinder affidavit as recorded in the order dated 08.02.2007. Apparently the opposite party has targeted the applicant. There is already an order for personal appearance and framing of charges for non compliance of the directions of the writ court against the opposite party. Further in the order dated 19.2.2010 two months time was granted to the opposite party to ensure full compliance in the light of the observations contained in the said order. Instead of ensuring compliance and filing of affidavit of full compliance the opposite party has evolved a new technique for further harassment of the applicant. Put up this case in the additional cause list on Friday, 9.7.2010. The opposite party or whoever is posted as Commandant, 42 Battalion PAC, Naini shall remain present before this Court. 18.8.2010 Learned Counsel for the applicant stated that a lame excuse has been made on behalf of the opposite party which is only delaying tactics. Considering the facts and circumstances of the case, the exemption application is hereby rejected. Let bailable warrant be issued against the opposite party fixing 6.9.2010. On that date, opposite party shall remain present before the Court. Office is directed to take necessary steps in the matter. Affidavit of compliance filed today on behalf of opposite party is taken on the record. Learned Counsel for the applicant has stated that till date no compliance has been made. He prays for and is allowed ten days time for filing reply to the said affidavit. 6.9.2010 Today a supplementary rejoinder affidavit has been filed on behalf of the applicant which is taken on record. Pursuant to the order dated 18.8.2010 the opposite party is present in the court and has assured to this Court that the arrear of salary between 3.5.2006 to January, 2007 shall be paid positively within a period of two weeks from today. Let the matter be listed on 24.9.2010. In case, the aforesaid amount is not paid on or before the date fixed, the Court would have no option but to frame charges against the opposite party. However, it is made clear that if the order passed today is complied with, in that event, the opposite party need not to appear on the date fixed. This Court by order dated 24.9.2010 framed the following charges against the opposite party: Charge No. 1: That you, Mr. Satyendra Kumar, Sena Nayak, 42, Battalian, P.A.C., Naini, Allahabad, show cause why you should not be tried and punished for wilful and deliberate violation of the judgment and order of this Court dated 21.3.2006 passed in Civil Misc. Writ Petition No. 40165 of 1999. Charge No. 2: That you are further charged for committing wilful breach of an undertaking given in the present contempt proceedings on 6.9.2010. Your reply should be filed on or before 15.10.2010 after serving a copy of that on the learned Counsel for the applicant, who may file a reply thereto before the next date fixed. It is clarified that any observation or finding made or recorded herein above are only, prima facie, in nature and are subject to the reply which may be filed in response to the charges framed.
(3.) BY the aforementioned order, the charges, as indicated herein above, were framed against the opposite party and was granted time to file reply to the said charges on or before 15.10.2010 by serving a copy thereof upon the learned Counsel for the applicant and the matter was posted for today i.e. 22.10.2010 but till date neither any reply has been filed nor has any explanation been given for not filing the said reply within the stipulated period. This conduct on the part of the opposite party itself reflects that he does not want to say any thing in the matter and has accepted the charges framed against him. The only request made by Mr., Ajai Kumar Sharma, who has been engaged by the opposite party as his new counsel at this stage, was for adjournment of the case. However, neither any application nor affidavit to this effect was filed. Besides this, the Contemnor has not shown any sense of remorse or repentance about his conduct.;