- (1.) THE petitioner (Parkash Chand) was recruited as a clerk in the Punjab Public Works Department (Buildings and Roads Branch), in February, 193'8, and was promoted as senior clerk in May, 1945. and as Head Clerk in September, 1946. He was dismissed from service on July 19, 1964, while serving as Head Clerk at Hissar. He challenged that order of dismissal by way of a1 suit for declaration that the order of his dismissal was illegal, ultra vires, unconstitutional and mala fide and that he continued to hold the post of Head Clerk in the State of Punjab with all the privileges of the service. The learned trial Court found that the order of dismissal had not been passed by the competent authority and, therefore, it was bad in law. He, accordingly, decreed the suit of the petitioner on May 8, 1969, That decree was affirmed by the District Judge in appeal on February 11, 1970. Against the appellate decree, the State of Punjab filed an appeal (R. S. A. 1330 of 1970) in this Court which was dismissed in limine by our learned brother Mahajan, J,, on September 23, 1970. An application for permission to file a Letters Patent appeal was dismissed by the learned Judge also in limine. The Punjab State then moved the Supreme Court under Article 136 of the Constitution for special leave which was granted and the appeal is pending in that Court.
(2.) IN spite of the decree declaring the dismissal of the petitioner to be illegal, void and of no effect, the Punjab Government did not reinstate him nor paid him the arrears of his salary. Since he was not reinstated, salary for the future was also not paid. The petitioner then filed the present petition under Section 3 of the Contempt of Courts Act against Shri Paramjit Singh, I. A. S. , Secretary to Government, Public Works Department (B. and R.) Punjab, Chandigarh, and Shri Kewal Krishan, Chief Engineer, Public Works Department (B. and R.), on December 23, 1970, wherein after giving the history of the litigation he stated in paras 6 and 7 as under: 6. That after the judgment of the Sub-Judge, and the District Judge, the petitioner had been continuously requesting orally as well as in writing to the Secretary to Government, P. W. D. B and R, the Chief Engineer, P. W. D, Buildings and Roads, Chandigarh, and also to the Minister concerned, for reinstatement and for payment of salary and allowances. , etc. etc. but the respondents have not cared to do anything in the matter. 7. That the inaction of the respondents to pay the petitioner his due salary and allowances and also to reinstate him is gross contempt of this Hon'ble Court and amounts to lower the prestige of this Hon'ble Court in the minds of the genera^ public as they have mala fide flouted the orders of the Courts. Notice of this petition was issued to the said respondents who filed their written statements in which it was mentioned that the entire case from the stage of enquiry to the filing of appeals was conducted by the Vigilance Department of the Punjab Government and not by the Public Works Department i (B. and R. Branch ). The said respondents were not, in any way, concerned with the matter nor had any occasion to pass any order thereon and, therefore, the question of any inaction on their part did not arise. Thereafter, the petitioner amended his Detition and impleaded Shri S. S. Grewal, I. A. S. Chief Secretary to Govlm-n-ment, Punjab, and Secretary, Vigilance' Department, as respondent 1. Shri Grewal filed his affidavit in reply to the petition in which he stated that there is one application written by the petitioner dated 5th November, 1970, and addressed to the Secretary to Government Punjab, Vigilance Department. Chandigarh, which is available on the-record of the case. In this application, the petitioner prayed that his case may be finalised etc. The Government then moved the Hon'ble High Court for permission to file Letters Patent Appeal against the judgment of Hon'ble Mr. Justice Mahajan dated 23-9-1970 and that' application was dismissed by Hom'ble-Mr. Justice Mahajan in limine on 11-12-1970. The record shows that the information about the dismissal was received in the office of the Secretary to the Vigilance Department on 11-1-1971. After the application of the petitioner referred to earlier, no further application was received in my office. It has then been pointed out that the Government filed an application for special leave to appeal to the Supreme Court and also obtained the opinion of the Legal Remembrancer in the matter, The Legal, Remembrancer gave his opinion on March 2, 1971, that the decree being a declaratory one, the petitioner. shall be deemed to be in service till a different verdict is given by the Supreme Court. He also-opined that a separate order for reinstatement wns not necessary and that tht-non-remstatement of a person, who. se dismissal has been declared illegal, does not amount to contempt of Court. For this opinion, he relied on the decision of a learned Single Judge of this Court (R. P. Khosla, J.) in Criminal Original No. 14 of 1965 (Bua Dass Kaushal v. State, decided on April 26, 1965 ). It has then been pointed out In view of this situation the, office has not taken any further action to actually give the charge of the job to the petitioner or to Hive him the back salary. The Supreme Court judgment is being. ". waited. If the Supreme Court dismisses the State appeal, action will be taken to give all the reliefs to the petitioner which are permissible under the law. " It is further stated by Shri Grewal in his affidavit that the deponent holds the Hon'ble High Court in high esteem. It has never occurred to him to show. any contempt to the order of the High Court. In fact, the deponent has the highest respect for the High Court and the administration of justice. The deponent has been advis-ed that a declaratory decree is not enforceable and cannot be executed. The deponent was also advised that during the pendency of the matter before the Supreme Court the question of reinstatement or payment of salary can wait. Even otherwise, if the petitioner is reinstated and later on the Supreme Court accepts the appeal of the Government, the em-tiloyee concerned would have been granted the pay as also would have worked when he was not entitled to do so, it will become extremely difficult to recover the. arrears if the same are paid to him. Moreover, if he is allowed to work, he would also be drawing his salary and that cannot be recovered even if the Supreme Court gives a verdict in favour of the 'government because it would then be urged that the employee concerned has got the salary for the job that he has done. Lastly, it has been submitted that no -mandamus has been issued to the State to reinstate the employee concerned and that the declaratory decree merely declares the rights of the persons concerned which can be enforced if the law so permits. There is no decree in favour of the petitioner for any arrears of salary nor is there any decree in his favour ordering the Slate to reinstate him. All the same, if tho Supreme Court gives the verdict against the State, the reliefs which are available to the petitioner in accordance with law would be given to him.
(3.) THE contempt petition came up for hearing before Sandhawalia, J. , and the learned Judge was of the opinion that a number of significant and far-reaching questions arose in the petition for which there was no binding precedent. He, therefore, directed that a larger Bench may be constituted to hear the petition. The questions posed by the learned Judge were as under: 1. Does a declaratory decree granted in favour of a public servant declaring his dismissal to be illegal, void and unconstitutional, entitle him to claim reinstatement to his original post? 2. Would such a public servant be entitled to the payment of his past and future emoluments by virtue of the decree alone? 3. Is such a decree inexecutable by civil process and if so, can resort be had to contemot proceedings against the officials of the State for refusing to give effect to such a decree?;