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PETITIONER: STATE OF U.P. & ORS.

       Vs.

RESPONDENT: ASHOK KUMAR SAXENA AND ANOTHER ETC.

DATE OF JUDGMENT:       04/02/1998

BENCH: K.T. THOMAS, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T SRINIVASAN. J.      This is  a case  of gross  abuse of  power by  the High Court in  its exercise  of contempt  jurisdiction. The  High Court has  not only misunderstood the scope of its own order but also  been overzealous  in the  purported enforcement of the same with the result it has passed a totally unwarranted order casting  a stigma on the appellant in Civil Appeal No. 748 of  1997 who  was then the Engineer-in-Chief, Department of Irrigation, Lucknow (U.P.). The two S.L.Ps bracketed with the appeal  are against  the same  order -  one by the State Government and  its officials  and the  other by  the second respondent in the above appeal. For the sake of convenience, we will  refer to  the parties  by their  ranks in the civil appeal and the petitioners in S.L.P. No.21052 of 1996 as the State Government. 2.   By order  dated 7.10.1995  the State  Govt. transferred the first  respondent herein  who was  working as  Assistant Engineer from  Northern Division.  Ganga  Canal,  Roorki  to IIIrd   Sub-Division,    Dhampur,   Irrigation   Department, Moradabad. By  the same  order the second respondent who was working as  Assistant Engineer  at Dhampur  was attached  to Irrigation  Department,  Moradabad.  The  second  respondent filed a  writ petition  in the  High Court  challenging  the order of  transfer. A  Division  Bench  of  the  High  Court dismissed the  petition  in  liming  on  16.10.1995  by  the following order:      "Sri R.S.  Yadav for petitioner and      Sri Afsar  for the  respondents are      heard. By  the impugned  order  the      petitioner  is   transferred   from      Dhampur to  Moradabad which is only      70 Km,  away from  Dhampur. It is a      transfer matter and no interference      in such  a matter  is called for in      the writ jurisdiction. The petition      has no  merit  and  is  accordingly      dismissed" 3.   On 18.10.1995  the President’s  Rule was imposed in the State.  Orders  were  issued  by  the  Chief  Secretary  for

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reviewing various  important orders  passed by  the previous Government between 1.10.95 and 18.10.95 including the orders of transfer  of officials. Consequently the appellant passed an office  order  dated  31.10.1995  staying  the  order  of transfer dated  7.10.1995. Accordingly  the first respondent reported back  at Northern  Division, Ganga  Canal Roorki on 11.11.1995. On  19.12.1995 the appellant issued fresh orders of  transfer  in  accordance  with  Government  order  dated 12.12.1995 posting  the first  respondent at  Eastern  Ganga Canal Construction  Circle, Haridwar.  The first  respondent challenged the  same as  well as  the  earlier  order  dated 31.10.1995 in  writ Petition  No. 4078  of 1996. On 1.2.1996 the High Court passed an order in the following terms:      "It appears  that  this  Annexure-2      was passed by the Engineer-in-Chief      after  respondent   had  failed  to      obtain any order in his favour from      the High  Court and  the  order  of      transfer    was    challenged    by      Respondent No.5  in This Court. The      Court did  not grant  any relief in      his Favour  but soon thereafter the      represented to  the Engineer-in-in-      Chief. The Engineer-in-Chief passed      the order  staying the  first order      dated   7.10.1995,    whereby   the      petitioner   had    already    been      functioning   at    Dhampur.    We,      therefore, direct that irrespective      of any one of these irrespective of      any   one    of   these   annexures      contained in  Annexures 1,2  and  3      the petitioner  shall  continue  to      function at  Dhampur and Respondent      No.5  will  continue  on  the  post      which he is holding.      The petitioner  is    satisfied  to      continue at Dhampur" The first  respondent filed an application for clarification in  the   last  sentence   of  the   first  paragraph.  That application was  ordered on  14.2.96  by  which  the  second respondent was  to continue in the post which he was holding Moradabad. It  is stated that both the aforesaid orders were passed without  issuing  notice  to  the  second  respondent though  he was the fifth respondent in the writ petition. 4.   On coming  to know  the orders,  the second  respondent filed an  application for  recalling  the  previous  orders. Which that  application came up on 24.5.1996 the counsel for the first  respondent could not be present on account of the illness and the Court adjourned the said application on that ground.  However,   the  Court   observed  that  the  second respondent had  no grievance  with the  order by  which  the first respondent  was directed  to continue  to function  at Dhampur. The Court also observed that the authorities should be at  liberty to pass any appropriate order relating to the posting of the second respondent herein. 5.   The matter  came up  before the  Court on 3.7.1996. The Court opined  that the matter could not be proceeded without the physical  presence of  the appellant  in the  Court  and directed its  Registrar to  communicate  the  order  to  the Engineer-in-Chief, Irrigation Department, U.P. asking him to produce the appellant before it positively on 8.7.1996. Even at that  stage the  Court directed  that  if  the  appellant "evades his  presence in  Court on  that date,  he shall  be brought  into   police  custody   withe  the  assistance  of

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Superintendent of  Police of  the area  where  he  has  been serving". The  Court also  directed the  order to be sent by Fax as  well as  personal messenger to the Engineer-in-Chief besides by  Fax to  the Chief  Secretary of  the  State  and simultaneously to  the Principal Secretary of the Irrigation Department. Above  all, the  Court directed  the  Additional Chief Standing Counsel Mr. Hussain to take appropriate steps for execution  of that  order. In  our opinion, there was no circumstance warranting  the over-anxiety  displayed by  the Court  in  that  order.  There  it  no  presumption  that  a responsible officer of the Government would disobey an order of the Court requiring his presence in Court on a particular date. What  was the  occasion for  the Court  to direct  the officer to  be taken  into police  custody even  when it was only issuing  a notice  calling  upon  him  to  be  present? Significantly, the  order did  not indicate anywhere that it was issuing a notice of contempt. 6.   But in the order passed on 5.7.1996 the Court described him as  "alleged contemnor".  In that order the Court stated that second respondent herein desired to withdraw his review applications and  all other  pleadings in  the writ petition though according  to second  respondent he  was compelled by the Court  to do  so. The Court also recorded that the first respondent herein  stated that  he did  not pursue  his writ petition in  view of  the fact  that the  order of  transfer dated 7.10.1995  had been  implemented in  the sense that he was working  at Dhampur.  Taking not  of the same, the Court observed that  it did  not propose to pass any further order as the respondents 1 and 2 shall continue at their places of posting according  to the  original order  of transfer dated 7.10.1995. However,  the Court  proceeded to  hold that  the action of  the appellant  amounted to contempt in as much as he had  dared to  stay the  order of transfer after the writ petition filed by the second respondent herein was dismissed by  the  Court.  The  Court  opined  that  the  order  dated 16.10.1995 dismissing  the writ petition filed by the second respondent court  a final  real of the Court on the order of transfer dated  7.10.95 and  therefore the  subsequent order dated 31.10.95  passed by  the appellant keeping in abeyance the order  of transfer  dated 7.10.95  would tentamount to a deliberate attempt  on the part of the appellant to undo the Court’s order  and flout  the same.  The Court  referred  to unconditional apology tendered by the appellant and observed that its  conscience did  not permit  it to accept the same. The Court  said that  instead f  sending him  to prison  its displeasure be  recorded at  his conduct and he be warned to be more  careful in future. The Court directed that the said remark be  introduced in  his confidential record. The Court also observed  that  respondents  1  and  2    herein  would continue on  the posts to which they were transferred by the order of transfer dated 7.10.95. 7.   It is  that order  which is  in challenge  before us in these three  matters. We  are not  concerned here  with  the correctness of  the order  of transfer  passed by  the State Government of  the order  of transfer  passed by  the  State Government   of the validity of  the contentions put forward by respondents  1 and  2 against the same in the High Court. The parameters  of the  powers of  a Court under Article 226 vis a vis an order of transfer for are well settled. In N.K. SINGH VERSUS  UNION OF  INDIA 7 ORS. (1994) 6 S.C.C. 98 this Court held that interference by judicial review is justified only in  cases of  mala fides or infraction of any professed norms  or  principles  and  where  career  prospects  remain unaffected and  no detriment  is  caused  to  the  concerned Government employee,  challenge  to  the  transfer  must  be

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eschewed. Reiterating  the said  proposition  in  Sri  Abani Kanta Ray  Versus State  of Orissa & Ors. J.T. 1995 (7) S.C. 467 the  Court added  that transfer  being an  incidence  or service, is  not to  be interfered with by the Courts unless it is shown clearly arbitrary. 8.   In this   case,  the High  Court  passed  an  order  on 18.10.95 dismissing  the writ  petition filed  by the second respondent  refusing   toe  interfere   with  the  order  of transfer. Thereby  the High Court upheld the validity of the order of  the Government transferring the second respondent. By doing  so the  High Court  did not and could not have put any fetters  on the  power of  the Government  to  pass  any subsequent  order  of  transfer  or  re-call  the  order  of transfer already  made. The  High Court  had in  occasion to restrict such  powers of  the Government  which were in fact recognized and  acknowledged by  the Court  in the very same order of  dismissal. It  cannot therefore  be  said  by  any stretch of  imagination that   by  the said  order the  High Court put  its final  seal  of  approval  of  the  order  of transfer dated  7.10.1995 passed by the Government. The High Court  had   not  and   could  not   have  taken   over  the administration of the State by the said order dismissing the writ petition.  There  was  therefore  no  bar  against  the Government  or   the  appellant   withdrawing,  altering  or modifying the order of transfer passed on 7.1095. 9.   Forgetting the  said  fundamental  principal  the  High Court proceeded  to act  on an  erroneous  premise  that  by directing the  order of transfer dated 7.10.95 to be kept in abeyance the  appellant had  flouted the Court’s order dated 16.10.95. The  High Court  was so  much obsessed  with  that idea, it  became over-anxious  to  see  that  its  order  as understood by  it was  carried out and the appellant who had stayed the order of transfer dated 7.10.95  was punished. 10.  This Court  has on  several occasions  pointed out that the power  of punishment for contempt shall not be exercised lightly but  should be  exercised only to uphold the majesty of law  and dignity  of courts.  In Babu  Ram  Gupta  Versus Sudhir Bhasin  and Another AIR  1979 Supreme Court 1528 this Court said:      "It is  well settled  that while it      is the  duty of the Court to punish      a person  who tries to obstruct the      course of  justice or  brings  into      disrepute  to  the  institution  of      judiciary  this  power  has  to  be      exercised not  casually or  lightly      but    with    great    care    and      circumspection  and  only  in  such      cases  where  it  is  necessary  to      punish the  contemner in  order  to      uphold the  majesty of  law and the      dignity of the courts." 10.  It is  needless to  say that  the facts  in the present case did not warrant the exercise of power by the High Court to punish the appellant for contempt as he had not committed any contempt  at all.  There is  no  justification  for  the observations made  by the  High Court  in the impugned order against the  appellants conduct  with a  direction that  the same should be introduced in his confidential record. 11.  The direction  contained in  the last  paragraph of the impugned order that respondents 1 and 2 will continue on the same posts  to which  they were  transferred by  order dated 7.10.95  will   not  prevent  the  Government  from  passing appropriate order  of transfer  in accordance  with rules as and when it thinks fit.

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12.  The Civil  Appeal is  allowed and the impugned order of the High  Court dated  5.7.1996 is  set aside.  The  Special Levee Petitions  are accordingly disposed of. No order as to costs.