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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: SATISH CHANDRA SHARMA

DATE OF JUDGMENT30/11/1979

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. PATHAK, R.S.

CITATION:  1980 AIR  600            1980 SCR  (2) 298  1980 SCC  (2) 144

ACT:      Code of  Civil Procedure 1908 (V of 1908) Order 39 rule 2 (3)-Suit  by railway  employee-In  injunction  application court ordering  reinstatement in  service-Non-compliance  by department-Court ordering attachment of department  property and officers  be sent  to civil jail-Property for attachment not specified,  contemner for detention not named-Such order whether valid.

HEADNOTE:      The respondent a railway employee was proceeded against by the  department for misconduct. He did not respond to the ’show-cause’ notice  issued to him and when the disciplinary proceedings  proceeded  ex-parte  he  filed  a  suit  for  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 disciplinary enquiry and to continue to pay his full salary. After hearing,  the Munsif  directed that  the respondent be placed in  the same  position that  he  held  prior  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.      In the  meanwhile the  respondent filed  an application under 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  Munsif’s order, directed  15 days  time for  compliance with the said order and  on failure  thereof, directed that the department shall be  visited  with  the  order  of  attachment  of  its property and its officers be sent to the civil jail.      An unsuccessful  appeal and an unrewarding revision was the  lot   of  the   department.  The  High  Court  made  an observation-cum-direction  that  as  the  Munsif  could  not proceed with the proceedings 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.

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    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  ministerial order to execute its decretal order. Nameless humans  cannot be whisked off to prison even in the name of contempt by insertion of the name after the judgment is delivered      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 299 various officers,  orders had  to be made at various levels, files had  to move  and notings  made for  gestation  before implementation. All this takes time and when the court order is eventually  effectuated, the  salary of the officer will, of course,  have to  be paid  with effect  from the original date of  impugned threat  of action. To proceed to punish in haste without pausing to realise how government functions is not fair in this drastic jurisdiction where personal freedom is in peril. [305 B-D]      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. Where  liberty and property are to be deprived it is fundamental that  vagueness is  a fatal  vice  even  if  the issuing authority be the court. [302 G]      In the  instant case,  the orders  passed by the Munsif and the  High Court  keep identity  of the  key persons  and properties in uncertainty. For this reason alone, the orders are vulnerable-against  both the  attachment of  unspecified property and detention of unnamed contemners. [304 C-G]      5. The  law, in  the area  of contempt  of court,  must avoid  the   extremes  of   hyper-reactivity   to   marginal indifference  to   judicial  authority   out  of   pragmatic difficulties. [300 E]      6. The  fluid, yet valid, concept of contempt of court, keeps judges  under the rule of law; for personal liberty is protected by a processual armour, even if its deprivation be the product of the judicial process. [300 E]      7. The  contempt power  should be kept sheathed and the sword should  be  drawn  only  sparingly  if  the  court  is convinced  that   there  has   been   wilful   defiance   or disobedience. [306 C]      8. Once  there is  clear evidence  of active obedience, coupled  with  expression  of  regret,  delayed  though  the compliance be  due to  the inevitable   time-lag  induced by the paper-logged  procedures, the court may be clement. [306 D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2031 of 1979.      Appeal by  Special Leave  from the  Judgment and  Order dated 20-1-79  of the Rajasthan High Court (Jaipur Bench) at Jaipur in S.B. Revision No. 112/76.      Soli J.  Sorabjee, Solicitor General, Subhodh Markendya and Girish Chandra for the Appellants.      Balakrishna Gaur for the Respondent.      The Judgment of the Court was delivered by

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    KRISHNA IYER,  J.-An odd  case  of  sentence  of  three months’ civil  imprisonment and  attachment of assets of the Central Government  and two  of its  officers for default in instant reinstatement  of a  Railway Inspector  removed from service for  misconduct occasions  this  appeal  by  special leave. 300      The Court  System is  neither a cloistered virtue nor a self-righteous  process  and  readily  re-examines,  in  its appellate crucible,  the judgments rendered at lesser levels even if the subject-matter be, as here, alleged disobedience of a  judicial order.  Justice is  not hubristic  and  truth triumphs by  self-criticism. And  so, this Court, in keeping with such  an  invigilative  perspective,  must  review  the punitive directive  of the  trial court,  affirmed upto  the High Court but challenged before us, that the Union of India and its officers in the Railway Department-the appellants-do 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  somewhat  and constrains us to go to the basics in a certain branch of the jurisprudence of contempt of court.      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 this appeal where disobedience of a mandatory injunction to retain in service, pendente  lite,   the  respondent,   a  railway   inspector, regardless of the disciplinary proceedings which had by then allegedly culminated  in his  exist from  service. The court shall neither  be imperious  nor be  obsequious. The law, in the area  of contempt  of court,  must avoid the extremes of hyper-reactivity  to   marginal  indifference   to  judicial authority out  of pragmatic difficulties and of hypo-respect for court commands in a cavalier spirit of ’the court has no guns. Why care ?’      The fluid,  yet valid,  concept of  ’contempt of court’ keeps judges  under the  rule of law; for, personal liberty, under our constitutional order, is protected by a processual armour, even  if its  deprivation  be  the  product  of  the judicial process.  This caveat  is called for in the present case  where   we  are  confronted  by  a  bizarre  order  of contingent imprisonment of unspecified servants and coercive attachment of  un-particularised properties  of the Union of India. And  yet, this  order has survived two appeals before arriving here by special leave.      The facts  are few and the law is not abstruse; yet, in our view,  the order  under appeal is an overzealous command with fatal  failings writ  on its  face. The  respondent, an Inspector in  the Western Railway, was proceeded against for misconduct. He  did not show up when the ’show cause’ notice was  issued;  and  when  the  disciplinary  steps  proceeded further, he  artfully  rushed  to  the  munsif’s  court,  by passing the departmental process, and sued for a declaration of  immunity   and  permanent   injunction  against  further governmental action.  Inevitably, he moved for an ad interim injunction to  restrain  the  Railways  from  affecting  his position in  service by  continuing the disciplinary enquiry and to  continue to  pay his full salary. After hearing both sides the court 301 issued, on  April 15,  1974, such  an injunction  or  freeze order, which   was appealed against in vain; and eventually, the revision  to the  High Court  also proved fruitless. The blanket order, which was sustained, reads thus:           I, therefore,  order and  direct the N.A. Union of

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    India and  its employees  not to implement or otherwise      put in  effect the order of dismissal at 18-1-74 or any      other  one  removing,  terminating  or  dismissing  the      services of the applicant as I.O.W. Of Western Railways      and direct further that the applicant shall be retained      and continued  on  post,  power,  pay,  privileges  and      perquisites attached to the post of Inspector of Works,      W. Rly,  and in  the same  manner as  if no  orders  of      removal or any other one were passed.           In other  words he shall be placed in the position      as he held it on 14-1-1974 in the matter of pay, power,      privileges and  all other  perquisites that  he availed      and enjoyed on 14-1-1974 and immediately before. The appellants,  hopefully but  harmfully, as events proved, awaited  the   decision  in   the   higher   courts   before implementing the direction for reinstatement. But even while the case of injunction was pending in the District Court, in appeal, an application under 0.39 R.2(3) or disobedience was filed on  15-7-1974. The  trial judge  held  the  appellants guilty and  passed  a  nebulous  sentence  against  nameless culprits on January 5, 1976 in these terms.           It is also clear that the non-applicants according      to the  decision of  this court  dated 15-4-74 have not      continued payment of the wages and other allowances and      therefore it  fully proved that the non-applicants have      not carried  out the order dated 15-4-74 of this court.      Now the  non-applicants are hereby further ordered that      if they  fail to  comply with  the order  dated 15.4.74      within 15 days the opposite party shall be visited with      the order of attachment of property and sending them to      civil  jail.  As  the  non-applicant  No.  2  has  been      transferred  from   Kota   Division,   therefore,   the      compliance of  the order  will be  made by  the present      Divisional Superintendent, Kota.      (Translation  furnished   in  court   by  the   learned      Solicitor General) An unsuccessful  appeal and  an unrewarding revision ensued. The High  Court hortatively told the Union of India that the law is  the King  of Kings  and, admonished in high-sounding style- 302           that the  state functionaries should atleast after      28 years  of the  functioning of  the Constitution  and      rule of  law in  this country,  realise understand  and      literally  and   faithfully  implement   the   judicial      pronouncement  by   showing  respect  to  law  All  the      officers, the  citizens in  general, the  litigants and      the State  functionaries in all seriousness should keep      the following  internal  saying  of  the  great  jurist      Maharshi Manu  as uppermost  in our  mind, i.e. ’Law is      the King  of Kings-far  more rigid  and  powerful  than      they, there  is nothing  higher than  law; and  by  its      powers the  weak shall  prevail  over  the  strong  and      justice shall  triumph’. I wish this should not only be      exhibited as the guide lines in all Government offices,      important public  institutions, street-corners and road      corners but  acts upon both in letter and spirit by all      irrespective of  the  office,  profession,  status  and      assignment which one holds in life. We agree  but wish  to add  that the  Manu text be exhibited also  in   courts  halls  together  with  Cromwell’s  famous statement which  the great Judge, learned Hand wanted should be hung  on legislative  and court halls: ’l beseech you, in the bowels  of Christ,  think it  possible that you might be mistaken !’

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    If we scan the anatomy of the Munsif’s order, which was upheld all  along, we  notice awesome  implications that if, within 15  days, compliance with the injunction did not take place-which implied  payment of long years’ salaries and re- induction into  service of  the respondent  (who had by then been removed),  all of  which required  much  more  time  to secure  sanctions   and  drawls   of  moneys  in  a  mammoth hierarchical machine-the  opposite parties  (who, among them ?) shall  be visits with the order of attachment of property (which ?)  and sending  them (whom  ? to civil jail (for how long ?).  As the  non-applicant No.  2 has  been transferred from Kota  Division therefore,  the compliance  of the order will be  made by the present Divisional Superintendent, Kota (and so, the transferee officer was in peril of imprisonment ?).  The  bracketed  interrogations  are  ours,  briefly  to indicate that  where liberty and property are to be deprived it is fundamental that vagueness is a fatal vice even if the issuing authority  be the court. The infirmity was corrected in small  part  by  the  High  Court  in  revision  as  will presently notice      Anyway, this order was stayed by the High Court on 5-3- 1976 until  it finally dismissed the revision on January 20, 1979.  And   it  is   the  appellant’s  case  that  salaries thereafter have  been paid,  calculations  have  been  made, sanctions obtained and money withdrawn and all the 303 dues of  years are  ready to be distributed. The question is whether the  action for disobedience was legal and justified and, in  any case, the draconian punishment of Government by attaching its  properties and  putting its  servants in jail was a desertion of judicial discretion whole hall-mark is to be firm but not authoritarian, liberal but not petulant. and ever informed by realism and impressed with contrition.      We  have   here  an  interlocutory  injunction,  though unusual, whose  soundness is  being  tested  in  a  separate proceeding in  this Court.  Let use  pro tempore, assume its valid existence  and focus  on the folk-up of alleged breach and visitation of punishment. What was the direction ? Could it be  practical to  comply within  that  time,  having  due regard to  the inertia  of administrative  processes  ?  Was there  recusant  refusal,  and,  if  so,  by  whom,  in  the conspectus of  facts here?  When does  the court  go to  the extreme of  imprisonment of  Government servants  at  lesser levels,  who   have  to   act  on  orders  from  above,  for disobedience? Is  it the  path  of  judicial  discretion  to temper justice  with mercy  or practise the opposite ? Above all. though  arising in  limine, can  there be  an order  of contingent attachment  of unspecified  properties ?  Can the court imprison  any one  unidentified in the order by making an omnibus direction leaving the life-giving parts blanks to be filled  up long after the judgment and. perhaps, to allow the bailiff  to seize  whom he regards as the violatory? May be, ’Hurry  Kills’ and  ’hasten slowly’  are mottos good for every one  who exercises  power either  at the  wheel of  an automobile or through the pen of a public functionary.      We  will  proceed  to  resolve  these  questions  which unbosom  their   answers  in   their  very  formulation  For instance, does  not the  mere asking  call for  the  obvious answer that  no order by however high a power can be fair or reasonable if it jeopardises the person of a citizen wearing the armour of part III, without so much as specificating the identity of  the human  being upon  whom the authority is to lay hands.  And yet, the learned Munsif merely directed that ’the opposite  party’ (plurality  of  three,  including  the Central Government)  be sent  to civil  jail. Moreover,  the

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order notices  that the  Divisional Superintendent  (P2) has been transferred  and yet  the innocent transferee is put in peril of  incarceration. Realising  this fatal Haw, the High Court sought  to repair  the yawning  tear by  making the in observation-cum-direction:           The learned  Munsif  Magistrate,  who  passed  the      earlier ll  order on  January 5, 1976 could not proceed      with  the   proceedings  for  sending  the  petitioners      concerned to Civil Jail 304      and also of attachment of the property. It would be for      the Munsif  concerned to name the officer concerned who      is required  to be  sent to  Jail and  further to  give      details of  the property to be attached for the purpose      of compelling  compliance as  per finding already given      in judgment  dated  January  5,  1976  as  modified  in      appeal.                                             (emphasis added) The court was relentless even when informed that the payment of salary pursuant to the order passed by the High Court had already been  made.  The  concluding  portion  of  the  High Court’s judgment  stated that  the Munsif  concerned  should take prompt  action "for  executing his  order in respect of sending concerned  officer to jail and the attachment of the property concerned  as mentioned  in his judgment ...." Both the  orders  keep  the  identity  of  the  key  persons  and properties in uncertainty.      We are  a little  startled that a court in the contempt jurisdiction should deprive the personal liberty of a person without naming  in the order whom the Court’s bailiff should take into  custody or  the jail  authorities should receive. Equally clearly,  how could  property be  taken without  its being   particularised   in   the   judgment,   disregarding procedural obligations ? It is not as if without hearing the officer  to   be  jailed  and  his  case  against  detention considered, the Munsif give 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.  The constitutional sanctity of liberty and the (then) protection of property  will become  chimerical and  the processual law will hang  limp is  the  substantive  order  is  silent  and identifying the  offender is  left  over  as  a  ministerial measure. The  High Court  was in  error in leaving it to the trial court  to designate such names when it actually issued the  ministerial   order  to  execute  its  decretal  order. Nameless humans  cannot be whisked off to prison even in the name of contempt by insertion of the name after the judgment is  delivered.   Natural  justice  is    pervasive  doctrine integral to  processual fair-play  in Indian  jurisprudence. For this  reason alone,  the extent order under challenge is vulnerable-against  both   the  attachment   of  unspecified property and detention of unnamed contemners.      Independently of  this invalidatory circumstance, it is apparent that  there is  no ground  for judicial indignation once the  facts are  appreciated in their realistic setting. The order  of injunction  was made  by  the  trial  court on 15-4-74 and brought before the High Court where the revision petition was  dismissed on  3-1-1979. Strictly speaking, the order of injunction had not been stayed and should have been obeyed. 305      It is  no excuse  to say  that when appeal and revision pend, litigative   hopes lull people into insouciance. While this is  not prudent,  it is  component  in,  judging  about obstinate non-compliance.  To  institute  a  proceeding  for

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disobedience of  an injunction commanding reinstatement of a government servant  purportedly removed  from service by the higher officers  of the  Railway, together  with payment  of salary  for  prior  periods,  is  a  stultification  of  the jurisdiction, if  sufficient time  is not  given.  A  little touch of  realism would have easily convinced the High Court that a government servant of the Union of India who has 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 various  levels, files  had to  move and notings made  for gestation  before implementation. All this takes  time   and  when   the  court   order  is  eventually effectuated, the salary of the officer will, of course, have to be  paid with  effect  from  the  original  date  of  the impugned threat  of action.  To proceed  to punish  in haste without pausing  to realise  how government functions is not fair in  this drastic jurisdiction where personal freedom is in peril.  The description  of is processes, as prevalent in the days  of Lord  Curzon, holds  good to-day.  Here are his impatient words dipped in pungent ink:           "..... . the administration had become  ponderous,      like an  elephant-’very stately,  very powerful, with a      high  standard   of  intelligence,  but  with  a  regal      slowness in its gait’"           "Round and  round, like  the diurnal revolution of      the earth,  went the  file, stately,  solemn, sure  and      slow: and  now, in  due season,  it has  completed  its      orbit, and  I am  invited to  register  the  concluding      stage." We are  in no  mood to  condone willful  procrastination nor suffer wanton  stagnation in  Administration as a ground for default in  obeying court  orders. The  Law does not respect lazy bosses  nor ’cheeky’  evaders .  But no  proof of  that species of  guilt  has  been  brought  to  our  notice  Mere inaction has  no long  mileage where means rea is a sine qua non      We, therefore,  regard the  court’s order,  holding the appellants in contempt, a hasty measure, probably annoyed by absence of instant compliance. 306      The severity  of the  sentence is beyond comprehension. We cannot  understand how  the court  could ignore  the fact that salary  had been paid from the date of the High Court’s order upto  date and the readiness to pay the back salaries, on securing  the appropriate  sanction and  drawl of cheque, had been  represented to  the court.  Before us, the learned Solicitor General said that the entire back wages were ready to be paid and the necessary cheque had already beery drawn. We see no inclination on the part of the Government of India to adopt a challenging attitude against the court’s writ. it is  well-known  that  the  contempt  power  should  be  kept sheathed and the swore should be drawn only sparingly if the court is  convinced that  there has been willful defiance or disobedience. Moderation  lends dignity to power and we feel that the  facts of  the present  case far  from call for 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 India should be shown undue indulgence  or its  officer singular  solicitude.  But once there  is clear evidence of active obedience, V coupled with expression,  of regret delayed though the compliance be due to  the  inevitable  time-lag  induced  by  paper-logged procedures, the  court may  be clement. Here, compliance and contrition are now present.

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    In these  circumstances, we allow the appeal and record the undertaking  of the  Union of  India, the 1st appellant, that the  entire salary  due to  the respondent will be paid within one week from to-day. N.V.K.                                        Appeal allowed 307