Supreme Court of India
ABHISHEK KUMAR SINGHversusG. PATTANAIK & ORS.
- Citation
- 2021 INSC 305
- Decided
- 3 June 2021
- Disposal
- Disposed off
- Bench
- A M KHANWILKAR
Holding
Contempt of court arises only on established wilful disobedience of a clear judicial order, which was not demonstrated in either the re‑engagement order of 4‑Dec‑2018 or the termination order of 2‑Mar‑2020.
Summary
The petitioners, former Assistant Engineers of Uttar Pradesh Jal Nigam, claimed that the corporation violated court orders by re‑engaging them without continuity of service and back wages, and later by terminating them without a prior hearing. The Supreme Court examined two sets of contempt petitions: one concerning the order dated 4‑Dec‑2018 that permitted work but did not expressly order reinstatement with arrears, and another concerning the termination order dated 2‑Mar‑2020 issued after the corporation concluded that segregation of tainted and untainted candidates was impossible. The Court held that contempt requires proven wilful disobedience of a clear court direction, which was absent because the High Court and Supreme Court directions were limited to permitting work and paying salary as it accrued, not to reinstatement with back wages. Consequently, the termination order was lawful given the impossibility of segregation, and no contempt was established. The Court dismissed all contempt petitions, rejected the transfer petition, and directed the matters to be pursued before the High Court under Article 226.
Issues considered
- Whether the order dated 4‑Dec‑2018 violated the Supreme Court’s direction by not providing continuity of service and back wages, constituting wilful contempt.
- Whether the termination order dated 2‑Mar‑2020, issued without prior hearing, amounted to wilful disobedience of the Supreme Court’s direction under Article 15.11.2018.
- Whether the petitioners may directly approach the Supreme Court under Article 32 or must first exhaust remedies under Article 226.
Legislation cited
- Constitution of Indias. Article 12, s. Article 139A, s. Article 14, s. Article 19(1)(g), s. Article 21, s. Article 226, s. Article 32
- Indian Evidence Act, 1872s. Section 65-B
Subjects
civil contemptwilful disobediencenatural justicereinstatementback wagesArticle 32Article 226Article 139Aselection processtainted candidatestermination orderhigh court directionjudicial discretion
Judgment
[2021] 5 S.C.R. 305 305
ABHISHEK KUMAR SINGH A
v.
G. PATTANAIK & ORS.
Contempt Petition (Civil) No. 625-626 of 2019
In
(Civil Appeal No. 11017-11018 of 2018) B
JUNE 03, 2021
[A. M. KHANWILKAR AND B. R. GAVAI, JJ.]
Contempt of Court: Civil contempt – It is well settled that
contempt action ought to proceed only in respect of established
C
wilful disobedience of the order of the Court – In the instant case,
the limited direction given by the High Court and not disturbed by
this Court was to permit the petitioners to work on the concerned
posts and to pay them regular salary as and when the same accrues
to them – Grievance of the petitioners in the first set of contempt
petitions was that the respondents have appointed them afresh D
instead of reinstatement with continuity of service along with arrears
of wages and thus have wilfully violated the direction of this Court
– The expression used is only “to permit the petitioners to work on
the posts” which were held by them at the time of their termination
and “to pay them regular salary month by month” and “as and
E
when the same accrues to them” – It is not a case of wilful
disobedience of the orders of the Court.
Contempt of Court: Civil contempt – The second set of contempt
petitions, emanate from termination order issued by the respondents
– These petitions essentially proceed on the allegation that the
respondents committed wilful disobedience of the order of this Court F
in not affording prior opportunity of hearing to the petitioners and
similarly placed persons despite express direction contained in the
said order – High Court had set aside the termination order issued
by the respondents, solely on the ground that it was in violation of
principles of natural justice – At the same time, liberty was given to G
the respondents to pass a fresh order in accordance with law
including by undertaking exercise of segregating the tainted from
the untainted candidates – Had the respondents concluded that it
was possible to segregate tainted from untainted candidates, they
would have been obliged to comply with the directions given by the
H
305
306 SUPREME COURT REPORTS [2021] 5 S.C.R.
A High Court and restated by this Court to afford prior opportunity
of hearing to the petitioners and similarly placed persons before
passing fresh, reasoned order – However, from the subject
termination order which is a speaking order, it is crystal clear that
after due enquiry and taking into consideration all aspects of the
matter, in particular the enquiry reports and the opinion of the
B
experts including final report of SIT, the respondents were of the
considered opinion that it was not possible to segregate tainted from
the untainted candidates for reasons recorded in that order – In
light of the conclusion reached by the respondents that it was not
possible to segregate the tainted from the untainted candidates, in
C law, it must follow that the respondents could annul the entire
selection process and pass the impugned order without giving
individual notices to the petitioners and similarly placed persons –
Thus, there was nothing wrong in respondents issuing the said
termination order without affording prior opportunity to the
petitioners and similarly placed persons.
D
Constitution of India: Arts 32 and 226 – If the termination
order is assailed on the ground of violation of principles of natural
justice or fundamental rights guaranteed under Part III of the
Constitution, such a grievance can be brought before the
constitutional Court including by way of writ petition under Art.32
E of the Constitution of India – It is a different matter that this Court
may be loath in entertaining the grievance directly under Art.32
and instead relegate the petitioner(s) before the High Court to first
exhaust the remedy under Art.226 of the Constitution of India – In
the present case, there are other proceedings pending in the form
F of contempt petitions and a transfer petition wherein the termination
order is the subject matter – Thus, the arguments in these cases will
be overlapping – In that, the self-same order has been impugned in
the writ petition filed before this Court – The fact that other affected
similarly placed persons have filed writ petitions directly before the
High Court and which are stated to be pending, can be no
G impediment for this Court in entertaining and deciding the writ
petition – For, the issue regarding the purport of orders passed by
this Court needs to be answered appropriately in contempt petitions
only by this Court – It is not open to the High Court to interpret or
explain the order passed by this Court in previous proceedings
H between the parties – High Court can only follow the dictum of this
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 307
Court which is binding on it – Accordingly, the preliminary objection A
taken by the respondents regarding the maintainability of writ
petition under Art.32 of the Constitution by similarly placed persons
directly filed before this Court to assail the impugned order which
is also subject matter of second set of contempt petitions is not
sustainable – Contempt of court.
B
Disposing the petitions, the Court
HELD: 1. It is well-established position that if the
termination order is assailed on the ground of violation of
principles of natural justice or fundamental rights guaranteed
under Part III of the Constitution, such a grievance can be C
brought before the constitutional Court including by way of writ
petition under Article 32 of the Constitution of India. It is a
different matter that this Court may be loath in entertaining the
grievance directly under Article 32 and instead relegate the
petitioner(s) before the High Court to first exhaust the remedy
under Article 226 of the Constitution of India. That is also because D
this Court will then have the advantage of the judgment of the
High Court on relevant aspects. In other words, it is not a question
of maintainability of writ petition, but one of exercise of discretion
with circumspection in entertaining writ petition under Article
32 in such matters. Further, in the present case, there are other E
proceedings pending in the form of contempt petitions and a
transfer petition wherein the termination order dated 02.03.2020
is the subject matter. Thus, the arguments in these cases will be
overlapping. In that, the self-same order has been impugned in
the writ petition filed before this Court. The fact that other affected
similarly placed persons have filed writ petitions directly before F
the High Court and which are stated to be pending, can be no
impediment for this Court in entertaining and deciding the writ
petition. For, the issue regarding the purport of orders passed
by this Court needs to be answered appropriately in contempt
petitions only by this Court. It is not open to the High Court to G
interpret or explain the order passed by this Court in previous
proceedings between the parties. The High Court can only follow
the dictum of this Court which is binding on it. Accordingly, the
preliminary objection taken by the respondents regarding the
maintainability of writ petition under Article 32 of the Constitution
H
308 SUPREME COURT REPORTS [2021] 5 S.C.R.
A by similarly placed persons directly filed before this Court to
assail the impugned order dated 2.3.2020, which is also subject
matter of second set of contempt petitions is not sustainable.
[Para 56][340-C-H]
2.1 The grievance of the petitioners is that the unambiguous
B direction given by the High Court and upheld by this Court was
to reinstate the petitioners on the same position with full back
wages. The respondents were, therefore, obliged to issue order
of reinstatement with continuity of service and back wages. The
argument is attractive at the first blush, but on deeper scrutiny
of the orders passed by the High Court and finally by this Court,
C it is noticed that the direction is limited to permit the petitioners
to work on the posts of Assistant Engineer (Civil), Assistant
Engineer (Electric/Mechanical) and Assistant Engineer
(iHighComputer Science and Electronics and Communication/
Electrical and Electronics) and to pay them regular salary month
D by month as and when it becomes due and payable to them. On
similar lines, the High Court disposed of another writ petition
challenging the termination order passed by the respondents. In
these orders, the expression used by the High Court is “to permit
the petitioners to work on the concerned posts and to pay them
regular salary as and when the same accrues to them”. Perusal
E of order passed in review petition also does not indicate that the
High Court expressly directed reinstatement of petitioners with
continuity of service and back wages, as such. Even in the decision
of this Court dismissing the appeals filed by respondents, no such
direction has been issued. The limited direction is that the
F respondents must first act upon the decision of the High Court
dated 28.11.2017 and only thereafter proceed in the matter in
accordance with law by passing a fresh, reasoned order. [Para
58][341-C-G; 342-C-E]
2.2 After cogitating over the orders passed by the High
G Court and this Court, it becomes amply clear that the High Court
had quashed and set aside the first termination order solely on
the ground that it was passed in violation of principles of natural
justice and further observed that the selection as a whole was
not liable to be cancelled without undertaking an exercise to
separate the tainted candidates from the untainted. While so
H
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 309
observing, it was made clear that the respondents were free to A
pass a fresh, reasoned order in accordance with law. [Para 59]
[342-E-F]
2.3 The explanation offered by the respondents is accepted
that going by the text of the orders passed by the High Court and
this Court, it was open to the respondents to issue order to re- B
engage the petitioners on the same posts from the date of order
and to pay them regular salary month by month thereafter or as
and when it would accrue to them. The orders passed by the
High Court and this Court, do not contain explicit direction to
reinstate the petitioners with continuity of service and back wages
as such. Instead, the expression used is only “to permit the C
petitioners to work on the posts” which were held by them at the
time of their termination and “to pay them regular salary month
by month” and “as and when the same accrues to them”. Thus
understood, it is not a case of wilful disobedience of the orders of
the Court. Arguendo, the interpretation as propagated by the D
petitioners of the stated orders dated 28.11.2017 passed by the
High Court and 16.3.2018 of this Court, is a possible view. Being
another possible view, the benefit must then be given to the
respondents. For, it would certainly not be a case of wilful
disobedience. It is well settled that contempt action ought to
proceed only in respect of established wilful disobedience of the E
order of the Court The limited direction given by the High Court
and not disturbed by this Court was to permit the petitioners to
work on the concerned posts and to pay them regular salary as
and when the same accrues to them, the plea under consideration
needs to be recorded only to be rejected. The case at hand does F
not qualify the test of contumacious, much less wilful disobedience
of the order of the Court by the officers of the respondents as
such. [Paras 60, 61, 62, 63, 64][342-G-H; 343-B-D; 345-B-C]
Sushila Raje Holkar v. Anil Kak (Retired) (2008) 14
SCC 392 : [2008] 7 SCR 278; State of Bihar v. Rani G
Sonabati Kumari AIR 1961 SC 221 : [1961] SCR 728;
Maruti Udyog Limited v. Mahinder C. Mehta & Ors.
(2007) 13 SCC 220 : [2007] 10 SCR 933; Ram Kishan
v. Tarun Bajaj & Ors. (2014)16 SCC 204 : [2014] 1
SCR 538; Director of Education, Uttaranchal & Ors.
v. Ved Prakash Joshi & Ors. (2005) 6 SCC 98 : [2005] H
310 SUPREME COURT REPORTS [2021] 5 S.C.R.
A 1 Suppl. SCR 620; K.G. Derasari & Anr. v. Union of
India & Ors.(2001) 10 SCC 496; Deepali Gundu
Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.
Ed.) & Ors. (2013) 10 SCC 324 : [2013] 9 SCR 1; P.
Karupaiah (Dead) through Legal Representatives v.
General Manager, Thruuvalluvar Transport Corporation
B
Limited (2018) 12 SCC 663 : [2017] 10 SCR 557 –
relied on.
3.1 The second set of contempt petitions, emanate from
termination order issued by the respondents. These petitions
essentially proceed on the allegation that the respondents
C committed wilful disobedience of the order of this Court in not
affording prior opportunity of hearing to the petitioners and
similarly placed persons despite express direction contained in
the said order. The Court had set aside the termination order
issued by the respondents, solely on the ground that it was in
D violation of principles of natural justice. At the same time, liberty
was given to the respondents to pass a fresh order in accordance
with law including by undertaking exercise of segregating the
tainted from the untainted candidates. Indeed, the Court expected
that before taking any precipitative action against the petitioners,
the respondents must afford opportunity of hearing to them. This
E observation is contextual. It would come into play dependent upon
the opinion eventually formed by respondents after due
consideration of the material collated by them to distinguish the
tainted and untainted candidates, was possible or otherwise. Had
the respondents concluded that it was possible to segregate
F tainted from untainted candidates, they would have been obliged
to comply with the directions given by the High Court and restated
by this Court in order dated 15.11.2018, to afford prior opportunity
of hearing to the petitioners and similarly placed persons before
passing fresh, reasoned order. However, from the subject
termination order dated 2.3.2020, which is a speaking order, it is
G crystal clear that after due enquiry and taking into consideration
all aspects of the matter, in particular the enquiry reports and the
opinion of the experts including final report of SIT, the
respondents were of the considered opinion that it was not
possible to segregate tainted from the untainted candidates for
H reasons recorded in that order. It is subject matter of challenge
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 311
in writ petitions pending before the High Court filed not only by A
Assistant Engineers, but also by Junior Engineers, Routine Grade
Clerks and others. In light of the conclusion reached by the
respondents that it was not possible to segregate the tainted from
the untainted candidates, in law, it must follow that the respondents
could annul the entire selection process and pass the impugned
order without giving individual notices to the petitioners and B
similarly placed persons. [Paras 65, 66, 67][345-D-E; 346-C-G,
H; 347-A-B]
Union of India & Ors. v. O. Chakradhar (2002) 3 SCC
146 : [2002] 1 SCR 1091; Veerendra Kumar Gautam
& Ors. v. Karuna Nidhan Upadhyay & Ors. (2016) 14 C
SCC 18 : [2016] 7 SCR 223; Vikas Pratap Singh &
Ors. v. State of Chhattisgarh & Ors. (2013) 14 SCC
494 : [2013] 10 SCR 1114 – relied on.
3.2 Since the respondents have concluded that it was not
possible to segregate tainted from the untainted candidates D
because of the reasons noted in the termination order dated
2.3.2020, in law, there was nothing wrong in respondents issuing
the said termination order without affording prior opportunity to
the petitioners and similarly placed persons. Had it been a case
of even tittle of possibility in segregating the tainted from the
untainted candidates, which exercise the respondents were E
permitted to engage in, in terms of the decision of this Court
dated 15.11.2018, it would have been a different matter. In that
case alone, the petitioners and similarly placed persons could
complain of wilful disobedience of the order passed by this Court
dated 15.11.2018. Even the second set of contempt petitions in F
reference to the subject termination order dated 2.3.2020 being
in violation of direction given by this Court to afford opportunity
to the petitioners vide order dated 15.11.2018, must fail. [Paras
68 and 69][347-C-F]
3.3 While discharging the show-cause notices issued in the
G
concerned contempt petitions and disposing of all the contempt
petitions, it is deemed appropriate to relegate the petitioners in
the transfer petition and the writ petition filed in this Court, before
the High Court to pursue their remedy under Article 226 of the
Constitution to assail the order dated 2.3.2020 with further
direction that all petitions involving overlapping issues and H
312 SUPREME COURT REPORTS [2021] 5 S.C.R.
A referred to in Annexure R-29 of the Supplementary Affidavit or
any other writ petition pending or to be filed, list whereof be
furnished by the parties to the High Court, for being heard
analogously. The High Court is requested to expeditiously
dispose of the writ petitions, leaving all contentions other than
decided in this judgment, open to the respective parties to be
B
raised before the High Court. The same be decided on its own
merits as per law. Show-cause notices issued in the respective
contempt petitions stand discharged. Contempt petitions are
dismissed; The transfer petition stands rejected, as a result of
which the writ petitions referred to therein will now proceed before
C the High Court in terms of this judgment; The writ petition is
disposed of with liberty to the petitioners therein including
applicants in intervention/impleadment applications to pursue
their remedy before the High Court by way of writ petition under
Article 226 of the Constitution, if so advised. That writ petition
be decided on its own merits in accordance with law keeping in
D
mind the observations made in this judgment along with other
pending or fresh writ petitions involving similar issues; and the
High Court is requested to take up all writ petitions involving
overlapping issues together for analogous hearing expeditiously.
[Paras 71, 72][348-D-H; 349-A-C]
E Uttar Pradesh Jal Nigam & Ors. v. Ajit Singh Patel &
Ors., (2019) 12 SCC 285 : [2018] 13 SCR 804; J.K.
Synthetics Ltd. v. K.P. Agrawal & Anr. (2007) 2 SCC
433 : [2007] 2 SCR 60; U.P. State Brassware Corpn.
Ltd. & Anr. v. Uday Narain Pandey (2006) 1 SCC 479
F : [2005] 5 Suppl. SCR 609; Haryana Financial
Corporation & Anr. v. Jagdamba Oil Mills & Anr. (2002)
3 SCC 496 : [2002] 1 SCR 621; Union of India & Anr.
v. K.M. Shankarappa (2001) 1 SCC 582 : [2000] 5
Suppl. SCR 117; Union of India v. Ashok Kumar
Aggarwal (2013) 16 SCC 147 : [2013] 12 SCR 629;
G M.P. State Coop. Bank Ltd. Bhopal v. Nanuram Yadav
& Ors. (2007) 8 SCC 264 : [2007] 10 SCR 307; Nidhi
Kaim v. State of Madhya Pradesh & Ors. (2016) 7 SCC
615 : [2016] 7 SCR 822; Kunhayammed & Ors. v. State
of Kerala & Anr. (2000) 6 SCC 359 : [2000] 1 Suppl.
H SCR 538; Khoday Distilleries Limited v. Sri
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 313
Mahadeshwara Sahakara Sakkare Karkhane Limited, A
Kollegal (2019) 4 SCC 376 : [2019] 3 SCR 411; Bihar
Finance Service House Construction Cooperative
Society Ltd. v. Gautam Goswami & Ors. (2008) 5 SCC
339 : [2008] 3 SCR 1137; Sudhir Vasudeva, Chairman
and Managing Director, Oil and Natural Gas
B
Corporation Limited & Ors. v. M. George Ravishekaran
& Ors. (2014) 3 SCC 373 : [2014] 4 SCR 27; Dinesh
Kumar Gupta v.United India Insurance Company
Limited & Ors. (2010) 12 SCC 770 : [2010] 13 SCR
599; Kapildeo Prasad Sah & Ors. v. State of Bihar &
Ors. (1999)7 SCC 569 : [1999] 1 Suppl. SCR 725; C
Mohd. Iqbal Khanday v. Abdul Majid Rather (1994) 4
SCC 34 : [1994] 3 SCR 396; Romesh Thappar v. State
of Madras [1950] SCR 594; Manohar Lal (Dead) by
LRs. v. Ugrasen (Dead) by LRs.& Ors. (2010) 11 SCC
557 : [2010] 7 SCR 346; Union of India & Ors. v. S.K.
D
Kapoor (2011) 4 SCC 589 : [2011] 3 SCR 906; Nisha
Devi v. State of Himachal Pradesh & Ors. (2014) 16
SCC 392 : [2014] 3 SCR 483; Indian Institute of
Information Technology, Deoghat Jhalwa, Allahabad
& Anr. v. Dr. Anurika Vaish & Ors. (2017) 5 SCC 660 :
[2017] 3 SCR 691; P.N. Kumar & Anr. v. Muncipal E
Corporation of Delhi (1987) 4 SCC 609 : [1988] 1 SCR
732; Kanubhai Brahmbhatt v. State of Gujarat 1989
Supp (2) SCC 310 : [1987] 2 SCR 314; Kunga Nima
Lepcha & Ors. v. State of Sikkim & Ors. (2010) 4 SCC
513 : [2010] 3 SCR 787; Confederation of All Nagaland
F
State Services Employees’Assn.& Ors. v. State of
Nagaland (2006) 1 SCC 496; Amrit Lal Berry v.
Collector of Central Excise, New Delhi & Ors. (1975)
4 SCC 714 : [1975] 2 SCR 960; Dharampal Satyapal
Limited v. Dy. Commissioner of Central Excise, Gauhati
& Ors. (2015) 8 SCC 519 : [2015] 6 SCR 437; Union G
of India & Ors. v. Rajesh P.U. Puthuvalnikathu & Anr.
(2003)7 SCC 285 : [2003] 1 Suppl. SCR 883; Rajesh
Kumar & Ors. v. State of Bihar & Ors. (2013) 4 SCC
690 : [2013] 4 SCR 753; K. Channegowda & Ors. v.
Karnataka Public Service Commission & Ors. (2005)
H
314 SUPREME COURT REPORTS [2021] 5 S.C.R.
A 12 SCC 688 : [2005] 4 Suppl. SCR 126; Modern
Dental College and Research Centre & Ors. v. State of
Madhya Pradesh & Ors (2016) 7 SCC 353 : [2016] 3
SCR 579; Inderpreet Singh Kahlon & Ors. v. State of
Punjab & Ors. (2006) 11 SCC 356 : [2006] 1 Suppl.
SCR 772; Girjesh Shrivastava & Ors. v. State of Madhya
B
Pradesh & Ors. (2010) 10 SCC 707 : [2010] 12 SCR
839; Joginder Pal & Ors. v. State of Punjab & Ors.
(2014) 6 SCC 644 : [2014] 6 SCR 383; Purnendu
Mukhopadhyay & Ors. v. V.K. Kapoor & Anr. (2008)
14 SCC 403 : [2007] 11 SCR 462 – referred to.
C Case Law Reference
[2018] 13 SCR 804 referred to Para 1
[2013] 9 SCR 1 relied on Para 22
[2007] 2 SCR 60 referred to Para 22
D
[2005] 5 Suppl. SCR 609 referred to Para 22
[2005] 1 Suppl. SCR 620 relied on Para 23
[2002] 1 SCR 621 referred to Para 29
[2000] 5 Suppl. SCR 117 referred to Para 30
E
[2013] 12 SCR 629 referred to Para 30
[2002] 1 SCR 1091 relied on Para 31
[2016] 7 SCR 223 relied on Para 31
F [2007] 10 SCR 307 referred to Para 31
[2016] 7 SCR 822 referred to Para 31
[2000]1 Suppl. SCR 538 relied on Para 31
[2019] 3 SCR 411 referred to Para 31
G [2008] 3 SCR 1137 referred to Para 31
[2014] 4 SCR 27 referred to Para 31
[2014] 1 SCR 538 referred to Para 31
[2010] 13 SCR 599 referred to Para 31
H
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 315
[1999] 1 Suppl. SCR 725 referred to Para 31 A
[1994] 3 SCR 396 referred to Para 31
[1950] SCR 594 referred to Para 35
[2010] 7 SCR 346 referred to Para 36
[2011] 3 SCR 906 referred to Para 38 B
[2014] 3 SCR 483 referred to Para 42
[2017] 3 SCR 691 referred to Para 42
[1988] 1 SCR 732 referred to Para 42
C
[1987] 2 SCR 314 referred to Para 43
[2010] 3 SCR 787 referred to Para 43
(2006) 1 SCC 496 referred to Para 46
[1975] 2 SCR 960 referred to Para 46
D
[2015] 6 SCR 437 referred to Para 46
[2003] 1 Suppl. SCR 883 referred to Para 49
[2013] 4 SCR 753 referred to Para 49
[2005] 4 Suppl. SCR 126 referred to Para 49
E
[2016] 3 SCR 579 referred to Para 50
[2006] 1 Suppl. SCR 772 referred to Para 51
[2010] 12 SCR 839 referred to Para 51
[2014] 6 SCR 383 referred to Para 51 F
[2007] 11 SCR 462 referred to Para 51
[2008] 7 SCR 278 relied on Para 61
[1961] SCR 728 relied on Para 61
[2007] 10 SCR 933 relied on Para 61 G
(2001) 10 SCC 496 relied on Para 62
[2017] 10 SCR 557 relied on Para 63
[2013] 10 SCR 1114 relied on Para 67
H
316 SUPREME COURT REPORTS [2021] 5 S.C.R.
A INHERENT JURISDICTION : Contempt Petition (Civil) Nos.
625-626 of 2019. In Civil Appeal Nos. 11017-11018 of 2018.
From the Judgment and Order dated 15.11.2018 of this Hon’ble
Court in Civil Appeal Nos. 11017-11018 of 2018.
With
B
Contempt Petition (Civil) Nos. 642-643 of 2019 in C.A. Nos.
11017-11018 of 2018,
Contempt Petition (Civil) Nos. 671-672 of 2019 in C.A. Nos.
11017-11018 of 2018,
C Contempt Petition (Civil) Nos. 395-396 of 2020 in C.A. Nos.
11017-11018 of 2018,
Contempt Petition (Civil) Nos. 408-409 of 2020 in C.A. Nos.
11017-11018 of 2018,
Contempt Petition (Civil) Nos. 598-599 of 2020 in C.A. Nos.
D
11017-11018 of 2018,
Contempt Petition (Civil) Nos. 669-670 of 2020 in C.A. Nos.
11017-11018 of 2018,
Contempt Petition (Civil) Nos. 671-672 of 2020 in C.A. Nos.
E 11017-11018 of 2018,
W.P. (C) No. 491 of 2020 and T.P. (C) No. 1209 of 2020.
Mukul Rohatgi, Ms. Meenakshi Arora, Ravindra Raizada, Vikas
Singh, Sr. Advs., Mohd. Nizam Pasha, Ms. Ranjeeta Rohatgi, Ms. Samten
Doma, Rajeev Kumar Dubey, Saurav Singh Chauhan, Ashiwan Mishra,
F Kamlendra Mishra, Ms. Vanshaja Shukla, Mritunjay Singh, Ms. Anuja
Pethia, Gaurav Mehrotra, Talha Abdul Rahman, Utsav Misra, Abhineet
Jaiswal, Mohd. Shaz Khan, Udit Atul Konkanthankar, Kumar Shivam,
Mayank Sapre, Mohd. Atif, Rohit Anil Rathi, Nizam M. Pasha, Mrs.
Pragya Baghel, Ms. Sansriti Pathak, Ms. Sakshi Kakkar, Advs. For the
G appearing parties.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. These cases essentially assail the orders dated 4.12.2018 and
2.3.2020 issued by the Chief Engineer (A-2-1), Uttar Pradesh Jal Nigam,
H
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 317
[A. M. KHANWILKAR, J. ]
Lucknow1, pursuant to the judgment of this Court dated 15.11.2018 in A
Civil Appeal Nos. 11017-11018/20182.This Court by the aforesaid
judgment, had directed the Uttar Pradesh Jal Nigam (the respondent
corporation) to comply with the judgment of the High Court of Judicature
at Allahabad3 dated 28.11.2017 in a batch of writ petitions (leading case
being Writ-A No. 37143/2017) and pass a fresh, reasoned order.
B
2. In pursuance of the aforementioned decision of this Court, the
Chief Engineer issued order dated 4.12.2018, thereby reengaging the
petitioners and other appointees to their previous place of posting.
However, with a caveat that the said appointment was subject to the
liberty granted by this Court and that no arrears would be paid by the
respondent corporation. The order of the Chief Engineer dated 4.12.2018 C
is reproduced thus:
“The order dated 11.8.2017 passed by the Chief Engineer (A-2-
1) U.P. Jal Nigam Lucknow has been set aside by Hon’ble High
Court Allahabad by its order dated 28.11.2017 in W.P. No. A-
37143/2017 and Review Application No. 2/2018 is also rejected D
by Hon’ble High Court in its order dated 25.07.2018. The Hon’ble
Supreme Court has upheld [sic] the above order passed by
Hon’ble High Court in Civil Appeal No. 11017-11018/2018 titled
as U.P. Jal Nigam & Ors. v. Ajit Singh & Ors.
In the above context you are expected to perform your duty E
at your previous posting place within 15 days from issuing
of this order.
That it is being clarified that the said appointment will be
subject to the liberty granted to Nigam, by the Hon’ble
Supreme Court of India vide judgment dated 15.11.2018 in Civil F
Appeal No. 11017-11018/2018. The concerning paragraphs are
extracted below:
“15. In view of the above, the challenge to the impugned judgment
dated 28th November, 2017 and 25th July, 2017 must fail but with a
clarification that the competent authority is free to pass a fresh, G
reasoned order in accordance with law.
1
For short, “the Chief Engineer” or “respondents”
2
Uttar Pradesh Jal Nigam & Ors. v. Ajit Singh Patel & Ors., (2019) 12 SCC 285
3
For short, “the High Court” H
318 SUPREME COURT REPORTS [2021] 5 S.C.R.
A 16. We may not be understood to have expressed any opinion
either way on the merits of the course of action open to the
appellants against the respondents including against the other
appointees under the same selection process. All questions in that
behalf are left open.”4
B That no Arrears prior to the fresh date of appointment will
be granted by Nigam.”
(emphasis supplied)
3. This order, according to the contempt petitioners, is in the teeth
of the decision of this Court dated 15.11.2018 and, therefore, the
C respondents be proceeded for having committed wilful disobedience of
the order of this Court.
4. Thereafter, in terms of the liberty granted by this Court in the
aforementioned judgment, the respondent corporation passed a fresh
order dated 2.3.2020, annulling the appointment of the petitioners and
D similarly placed Assistant Engineers. In arriving at the fresh decision,
reliance was placed upon the two internal inquiry reports dated 29.5.2017
and 7.7.2017; expert reports — of IIIT Allahabad dated 11.9.2018 and
IIT Kanpur dated 15.9.2018; CFSL report dated 11.12.2019; and
recommendation made by the Special Investigation Team (SIT) in its
E final report dated 22.1.2020 received by the respondent corporation on
18.2.2020, to cancel the recruitment process due to corruption involved.
The two expert reports given by Assistant Professor at IIT Kanpur and
Associate Professor at IIIT Allahabad dated 15.9.2018 and 11.9.2018
respectively, pointed out that the audit trail/checksum and time stamps
of the candidates were not made available and therefore, segregation of
F tainted and untainted candidates was not possible, in absence of primary
data. The operative portion of the order dated 2.3.2020 is reproduced
below:
“20. …..
After the investigation conducted by the department
G
in the case, the reports of both the experts, the relevant
recommendation/conclusion of the SIT investigation and
after examination of the records, it has become clear that
the selection process in question is void ab initio for the
above reasons.
4
H extracted in paragraph 14 ibid
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 319
[A. M. KHANWILKAR, J. ]
In view of the above, the office memo number 08/A-2-1/ A
2151-0201/17 dated 03.01.2017, memo no. 09/ A-2-1 / 2151-0201/
17 dated 03.01.2017 and memo number 10/A-2-1/2151-0201/17
dated 03.01.2017 is cancelled with effect from the date of issue
i.e. date 03.01.2017 and the appointments in question are declared
void from the said date.
B
Due to the cancellation of the above office memorandum
issued on dated 03.01.2017, the orders which were circulated on
04.12.2018 to contribute again are effectively annuled.
The Assistant Engineer appointed under this process will
get the protection of salary allowances etc. received so far and C
no recovery will be made from them. In the discharge of
departmental responsibilities, the administrative and financial
functions performed by them so far will remain valid.”
(emphasis supplied)
5. This order has been assailed by the writ petitioner(s) directly in D
this Court by way of Writ Petition (Civil) No. 491/2020. We are informed
that the same order has been assailed by similarly placed persons governed
by the impugned order by way of writ petition(s) before the High Court
of Judicature at Allahabad and also at its Bench at Lucknow. Some of
them have filed transfer petition before this Court, to transfer their Writ E
Petition No. 13083/2020 (S/S) filed at Lucknow Bench of the High Court
and to hear it along with contempt petitions pending in this Court involving
overlapping issues. Accordingly, the assail in these petitions is to the
aforementioned order dated 4.12.2018, as well as, order dated 2.3.2020
passed by the respondents.
F
6. In Contempt Petition (C) Nos. 625-626/2019, 642-643/2019
and 671-672/20195, the grievance of the petitioners is that the respondents
have appointed them afresh instead of reinstatement with continuity of
service along with arrears of wages and thus, have wilfully violated the
direction of this Court in judgment 15.11.2018, to give full effect to the
High Court’s judgment dated 28.11.2017. G
7. Whereas, in Contempt Petition (C) Nos. 395-396/2020, 408-
409/2020, 598-599/2020, 669-670/2020 and 671-672/20206, the grievance
5
Collectively, “contempt petitions against non-payment of arrears”
6
Collectively, “contempt petitions against termination” H
320 SUPREME COURT REPORTS [2021] 5 S.C.R.
A is that the order of the respondents dated 2.3.2020, have annulled the
appointment of the petitioners, without affording opportunity of hearing
to the petitioners in violation of the judgment of this Court dated 15.11.2018
in Civil Appeal No. 11017-11018/2018.
8. In W.P. (C) No. 491/2020, the petitioners have prayed for
B quashing of order dated 2.3.2020 passed by the respondent and to
reinstate the petitioners with continuity of service and full back wages.
While, in T.P. (C) No. 1209/2020, the petitioners seek to withdraw and
transfer to this Court, Writ Petition (C) No. 13083/2020 (Service Single),
which is pending before the Lucknow Bench of the High Court, as the
order dated 2.3.2020 (impugned therein) is already subject matter in
C second set of contempt petitions including W.P.(C) No. 491/2020 before
this Court.
CONTEMPT PETITIONS AGAINST REENGAGEMENT
WITHOUT CONTINUITY OF SERVICE AND ARREARS OF
BACK WAGES VIDE ORDER DATED 4.12.2018:
D
9. The factual background leading to filing of these contempt
petitions is that the respondents, vide order dated 11.8.2017, annulled the
recruitment process pursuant to which the petitioners were employed,
thereby terminating services of the petitioners. The said order was
challenged before the High Court and came to be set aside by way of
E common judgment dated 28.11.2017. The above judgment also directed
that the petitioners be permitted to work and be paid regular monthly
salary. The relevant extract of this decision is reproduced thus: -
“…..
F In view of the above, we are of the considered opinion that
the impugned order dated 11.8.2017 has been passed in violation
of principles of natural justice without issuing notice and without
affording opportunity of hearing to the petitioners, no exercise
was undertaken to distinguish the case of tainted and non-tainted
candidates to arrive at the conclusion while passing the impugned
G order as such the impugned order dated 11.8.2017 is not sustainable
and is liable to be set aside.
Accordingly, the impugned order dated 11.8.2017 passed
by the Chief Engineer Jal Nigam (Annexure-9 to the writ petition)
is here by set aside.
H
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 321
[A. M. KHANWILKAR, J. ]
The writ petitions succeed and are allowed with the further A
direction to permit the petitioners to work on the post of
Assistant Engineer (Civil); Assistant Engineer (Electrical/
Mechanical) and Assistant Engineer (Computer Science/
Electronics and Communication/Electrical and Electronics)
and to pay them regular salary month by month with the
B
liberty to the respondents to pass a fresh, reasoned order after
providing opportunity of hearing to the petitioners and other
affected parties on the basis of observations made above.
No order as to costs.”
(emphasis supplied) C
10. Another writ petition filed by some of the petitioners before
Lucknow bench of the High Court, being Service Bench No. 19863/
2017 was also disposed of on 12.12.2017, in terms of the judgment dated
28.11.2017, in the following words:
“….. D
Accordingly, this writ petition is also allowed in terms of the
judgment and order dated 28.11.2017 passed by this Court at
Allahabad in the bunch of Writ Petitions, leading Writ Petition
being Writ-A No. 37143 of 2017, Ajit Singh Patel and others vs.
State of U.P. and others with a further direction to permit the E
petitioners to work on the post of Assistant Engineer (Civil),
Assistant Engineer (Electrical/ Mechanical) and Assistant
Engineer (Computer Science/ Electronics and
Communication / Electrical and Electronics) and pay them
regular salary as and when the same accrues to them with a F
liberty to the respondents to pass a fresh reasoned order after
providing opportunity of hearing to the petitioners and other parties
on the basis of the observations made by this Court at Allahabad
in the judgment and order dated 28.11.2017 (supra).
…..”
G
(emphasis supplied)
11. Upon failure of the respondents to act upon the directions
passed in judgment dated 28.11.2017, the petitioner(s) filed Contempt
Application (Civil) No. 6218/2017 before the High Court. Meanwhile,
the respondents preferred SLP (C) Nos. 5410-5419/2018 before this H
322 SUPREME COURT REPORTS [2021] 5 S.C.R.
A Court assailing the judgment dated 28.11.2017. The said special leave
petitions were disposed of by an order dated 16.3.2018, holding that the
respondents may approach High Court for a liberty to re-work the answer
sheets on the basis of corrections. The said order reads thus: -
“ORDER
B Mr. Rakesh Dwivedi, learned senior counsel appearing for
the petitioners, points out that the petitioners having found out that
there were defective questions and incorrect answer keys, the
High Court should have permitted the petitioners to re-work the
merit list. He submitted that the High Court has gone wrong in
C insisting for an individual notice in the factual matrix of this case.
In this regard he has also placed reliance on a judgment of this
Court in Vikas Pratap Singh and Others v. State of Chhattisgarh
and Others, reported in (2013) 14 SCC 494.
Mr. Mukul Rohatgi, learned senior counsel appearing for
D the respondent(s), however, points out that whether the questions
were defective or key answers were incorrect are disputed
question and, therefore, liberty should be granted to the respondents
to participate in the inquiry. He further submits that the decision
of this Court referred to by the learned senior counsel for the
petitioners may not apply to the facts of this case.
E
Be that as it may, having gone through the impugned
judgment, we do not find that the door is yet closed. It is
for the petitioners, if they are so advised, to approach the
High Court itself for a liberty to re-work the answer sheets
on the basis of the corrections, in case the High Court is
F also of the view that the corrections need to be made.
The special leave petitions are, accordingly, disposed of.
Pending application(s), if any, shall stand disposed of.”
(emphasis supplied)
G 12. Upon disposal of the said special leave petitions, the respondents
furnished an undertaking to the High Court in the Contempt Application
(Civil) No. 6218/2017 that the judgment dated 28.11.2017 will be complied
with on or before 15.5.2018. In the meantime, the respondents preferred
a Review Application No. 2/2018 in Writ - A No. 37143/2017, wherein
H the High Court, vide order dated 25.7.2018, refused to interfere with the
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 323
[A. M. KHANWILKAR, J. ]
judgment dated 28.11.2017 and reiterated that it was open to the A
respondents to pass a fresh order. This order dated 25.7.2018 reads
thus: -
“The Managing Director, U.P. Jal Nigam, Lucknow and the Chief
Engineer, U.P. Jal Nigam, Lucknow have both filed an application
for the review of the judgement and order dated 28.11.2017 by B
which a bunch of these writ petitions were finally decided.
The submission of learned Advocate General of State of U.P. is
that the applicants be granted liberty to segregate tainted and
untainted candidates in passing a fresh order for which liberty has
been given. C
The order impugned in the writ petitions was of 11.08.2017 passed
by the Chief Engineer, Jal Nigam which cancels the entire
selection.
In allowing the petition, we have held that the order
impugned in the writ petition has been passed in violation D
of principles of natural justice and that the selection as a
whole was not liable to be cancelled without undertaking
any exercise to separate the tainted candidates from the
untainted one’s. The court in the end while allowing the
writ petitions had permitted the applicants to pass a fresh E
reasoned order after providing opportunity of hearing to
the petitioners and the other affected parties keeping in
view the observations made in the judgment.
The applicants till date have not passed any fresh order.
In passing the fresh order they may consider each and every F
aspect of the matter and they do not require any permission
of the court for the manner in which they would pass the
fresh order.
In view of above, we do not consider that any liberty for the
above purpose is needed from the court. G
We do not find any apparent error in the judgment and order which
is sought to be reviewed.
The Review Application stands disposed of.”
(emphasis supplied) H
324 SUPREME COURT REPORTS [2021] 5 S.C.R.
A 13. Since the undertaking filed in Contempt Application (Civil)
No. 6218/2017 was not complied with even after the disposal of the
review petition, the High Court by order dated 6.8.2018, directed that
upon failure to file compliance affidavit before next date of hearing, the
presence of the respondents would be required for framing of charges
of contempt. Likewise, in another contempt petition before the Lucknow
B
bench of the High Court (against non-compliance of judgment dated
12.12.2017), a similar order was passed on 7.8.2018.
14. The respondents carried the matter in appeal before this Court
vide Civil Appeal Nos. 11017-11018/2018, impugning the judgment and
orders dated 28.11.2017 passed in Writ-A No. 37143/2017 and also dated
C 25.7.2018 in Review Application No. 2/2018. It may be useful to advert
to an interim order passed by this Court in the stated appeal, dated
20.8.2018, which may have some bearing on the grounds under
consideration. The same reads thus: -
“The only liberty granted to the petitioners and as
D rightly understood by the learned Advocate General
appearing for the State was to segregate the tainted from
the untainted as per Order dated 16.03.2018.
We direct the petitioners to file a report, in a sealed cover,
within one month from today, as to what steps have been taken
E pursuant to the Judgment dated 28.11.2017 passed by the High
Court and the order dated 16.03.2018 by this Court in the Special
Leave Petition.
List on 20.09.2018.
F The petitioners may approach the High Court and seek for
extension of time.”
(emphasis supplied)
Be that as it may, the decisions of the High Court referred to
above stood confirmed by this Court vide order dated 15.11.2018, giving
G liberty to the respondent(s) to pass a fresh, reasoned order. The relevant
portion of the decision of this Court reads thus: -
“14. The limited plea taken before this Court as noted in
the first paragraph of order dated 16th March, 2018 was to
allow the appellants to re-work the question and answer
H sheets and revise the merit list and issue fresh, reasoned
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 325
[A. M. KHANWILKAR, J. ]
order after providing opportunity of hearing to the affected A
candidates. That option has been kept open. It is for the
appellants to pursue the same. In other words, the
appellants must, in the first place, act upon the decision of
the High Court dated 28 th November, 2017 whereby the
order passed by the Chief Engineer dated 11th August, 2017
B
has been quashed and set aside. The appellants may then
proceed in the matter in accordance with law by passing a
fresh, reasoned order. Indeed, while doing so, the
appellants may take into consideration the previous inquiry
reports as also all other relevant material/documents which
have become available to them. We make it clear that we C
have not dilated on the efficacy of the opinion given by the
experts of the “IIIT Allahabad and IIT Kanpur”.
15. In view of the above, the challenge to the impugned judgment
dated 28th November, 2017 and 25th July, 2017 must fail but with
a clarification that the competent authority of Nigam is free D
to pass a fresh, reasoned order in accordance with law.
16. We may not be understood to have expressed any opinion
either way on the merits of the course of action open to the
appellants against the respondents including against the other
appointees under the same selection process. All questions in that E
behalf are left open.”
(emphasis supplied)
15. After the judgment of this Court dated 15.11.2018, the High
Court in the Contempt Application (Civil) No. 6218/2017, vide order
dated 26.11.2018, directed the respondents to comply with the judgment F
dated 28.11.2017 in the first instance. An order of even date was made
in Contempt No. 1428/2018 by the Lucknow bench of the High Court on
similar lines.
16. In terms of the directions of this Court in judgment dated
15.11.2018 and that of High Court in the two orders dated 26.11.2018, G
the respondents passed the impugned order dated 4.12.2018 (reproduced
in paragraph No. 2 above), reengaging the petitioners, albeit, without
continuity of service and arrears. The respondents also filed affidavit of
compliance before the High Court.
H
326 SUPREME COURT REPORTS [2021] 5 S.C.R.
A 17. In Contempt Application No. 6218/2017, the petitioner filed
objections to the said affidavit of compliance on 10.12.2018 on the ground
that withholding the payment of arrears is directly in teeth of the judgment
dated 28.11.2017, as confirmed by this Court vide judgment dated
15.11.2018 and thus, it amounts to wilful and deliberate disobedience of
the order of the Court.
B
18. Similarly, in Contempt No. 1428/2018, the objections were
first noted in order dated 17.12.2018 and then, a detailed affidavit of
objections was filed on 21.1.2019. The High Court, vide order dated
22.1.2019, observed that the reinstatement should be followed by payment
of full back wages and directed the respondents to pay the same within
C three months. The relevant portion of the said order is reproduced thus:
“.....
The Supreme Court has observed in the case of Deepali Gundu
Surwase7 that reinstatement ordinarily should be followed by
D payment of full back wages.
It is not the case of the respondents that the termination order has
not been set aside by this Court. It is also not the case of the
respondents that the petitioners have been gainfully employee
during the period that they remained out of service due to
E termination order which has ultimately been set aside. Therefore,
the respondents are directed to give arrears of salary as are due
to the petitioner after termination order is set aside by this Court.
The back wages of the petitioners in compliance of the orders
passed by this Court in writ jurisdiction shall be paid to the petitioner
within a period of three months.
F
List this matter after three months on 29.4.2019 by which date if
all arrears of salary are not paid, then the Managing Director of
U.P. Jal Nigam shall appear in person to assist this Court.”
19. Thereafter, by order dated 1.4.2019, the High Court recorded
that the respondents are prima facie guilty of wilful and deliberate
G
disobedience and directed their presence before the Court on next date
of hearing, for framing charge. The respondents assailed the said order
by way of SLP(C) No. 10774/2019. This Court, vide order dated
7.5.2019, observed that after the decision in Civil Appeal No. 11017-
7
Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) & Ors.
H (2013) 10 SCC 324
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 327
[A. M. KHANWILKAR, J. ]
11018/2018, the contempt petitions cannot be continued before the High A
Court and be deemed to have been withdrawn to this Court. Liberty
was granted to the petitioners to pursue other remedies as per law against
the impugned orders.
20. The respondents had challenged the High Court’s order dated
22.1.2019 by way of SLP (C) Diary No. 15756/2019, wherein this Court B
by order dated 10.5.2019, had followed the order passed in SLP (C) No.
10774/2019 to withdraw the contempt petition.
21. In these circumstances, the present contempt petitions in
reference to the order dated 4.12.2018 regarding reengagement without
continuity of service and arrears of back wages, arise for our C
consideration.
22. The thrust of the argument of the petitioners in these petitions
is that the effect of judgment of High Court in setting aside the termination
order dated 11.8.2017, as upheld by this Court is that the termination
order stood effaced in its entirety. As such, it was necessary to issue a D
formal order of reinstatement along with continuity in service and arrears
of pay for the relevant period. It is not open to the respondents to give
any other interpretation. It was then urged that the petitioners were not
gainfully employed elsewhere between the dates of termination and
reinstatement and therefore, were entitled to back wages. In support,
reliance has been placed upon the decision of this Court in Deepali E
Gundu Surwase8. Further, it was submitted that denial of back wages
would amount to giving premium to the respondents for their wrongdoings.
It was also pointed out that in Deepali Gundu Surwase9, the judgment
of this Court in J.K. Synthetics Ltd. v. K.P. Agrawal & Anr.10, which
has been relied upon by the respondents, was held to be not a good law. F
23. On the other hand, the respondents would submit that neither
the High Court in its judgment dated 28.11.2017 nor this Court in its
judgment dated 15.11.2018 had directed payment of arrears. Reliance
was then placed on the decisions of this Court in J.K. Synthetics Ltd.11
and U.P. State Brassware Corpn. Ltd. & Anr. v. Uday Narain G
Pandey12, to submit that arrears cannot be claimed as a matter of right
8
supra at Footnote No. 7
9
supra at Footnote No. 7
10
(2007) 2 SCC 433
11
supra at Footnote No. 10
12
(2006) 1 SCC 479 H
328 SUPREME COURT REPORTS [2021] 5 S.C.R.
A upon reinstatement, unless it has been expressly granted by the Court.
In that, the petitioners are not entitled to arrears. Further, the petitioners
cannot now claim arrears as it would amount to claiming a fresh relief
and is beyond the scope of contempt proceedings, whilst placing reliance
upon the decision of this Court in Director of Education, Uttaranchal
& Ors. v. Ved Prakash Joshi & Ors.13 It is urged that the petitioners
B
had accepted the terms of re-engagement without any demur and
therefore it was not open to them to claim back wages.
CONTEMPT PETITIONS AGAINST FRESH
TERMINATION ORDER DATED 2.3.2020:
C 24. The fresh termination order dated 2.3.2020 came to be passed
pursuant to the liberty given by this Court, leading to filing of the present
petitions. The background facts are that there were several lapses by
few officials of the respondent corporation and M/s. Aptech Private
Limited (the testing agency) in relation to the selection process for filling
up 122 posts of Assistant Engineers (113 - Civil, 5 - Electrical/Mechanical
D and 4 - Electrical and Electronics/Electronics and Communication/
Computer Science). That as per the agreement between the respondent
corporation and the testing agency, the testing agency was required to
display the answer key for three days and to take remedial action on the
objections received. Further, the testing agency was also required to
E retain the data pertaining to the examination for at least one year. The
testing agency breached the aforesaid conditions and interviews were
conducted, without confirming if the answer key was uploaded or not.
The interviews of 34,158 candidates were conducted in tearing haste on
30.12.2016 and 31.12.2016 and the final result was released on 3.1.2017,
and the appointments were made on the same day i.e., 3.1.2017. Since
F non uploading of the answer key had deprived the candidates of the
opportunity to file objections, the unsuccessful candidates approached
the High Court alleging that the recruitment process was not transparent
and was replete with several illegalities and irregularities. The High Court,
in Writ Petition Nos. A/15948/2017 and 9794/S.B./2017 (preferred by
G unsuccessful or non-selected candidates), directed the respondent
corporation to inquire into the said grievance and ensure that appropriate
action is taken. Accordingly, two separate inquiries were conducted by
the officers wherein several irregularities were found. On the basis of
these inquiries, the entire selection process was declared void-ab-initio
13
H (2005) 6 SCC 98
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 329
[A. M. KHANWILKAR, J. ]
and an order to that effect was passed on 11.8.2017. The said order A
later on came to be set aside vide judgment dated 28.11.2017 of the
High Court.
25. Meanwhile, a complaint was received by the U.P. Government
(Home Department) in regard to various examinations pertaining to
recruitment to several posts (including the present recruitment process). B
The government forwarded the same to SIT for investigation. The SIT
in its initial enquiry found that the testing agency had removed the entire
data pertaining to the present recruitment process from the main server,
in violation of the condition to store it for a year. The said fact was also
admitted by the testing agency. Therefore, in absence of original data,
assistance of the Directors of IIT Kanpur and IIIT Allahabad was sought C
to segregate the tainted and untainted candidates. The finding in the two
expert reports, inter alia, was that the response sheet was uploaded
after a long gap after the conclusion of the test which casts a doubt of
manipulation in the response sheets. Further, the data provided by the
testing agency did not contain the Timestamps and Mouse Clicks of the D
candidates and there is no mention of the Audit Trail/Checksum.
Therefore, the authenticity of the answers of the candidates could not
be verified and certified. Moreover, since primary data was not available
and the data stored in the CD could not be authenticated, it was not
possible to segregate the tainted and untainted candidates.
E
26. In the meantime, this Court in Civil Appeal No. 11017-11018/
2018 (against judgment dated 27.11.2017 and judgment in review dated
25.7.2018), had observed that the expert reports were not available while
passing order dated 11.8.2017 and gave liberty to pass a fresh reasoned
order by considering the previous inquiry reports and other data that
becomes available to the respondents. F
27. In separate proceedings pending before the High Court in
W.P. No. 12222/2017 (against recruitment for other posts), the Court
passed an order dated 21.5.2019 that it was for the respondent corporation
to decide to annul the entire selection process if the segregation cannot
be undertaken. The said order was upheld by the High Court in Special G
Appeal (Defective) No. 625/2019 and 626/2019 (intra court appeals) by
an order dated 31.7.2019. Furthermore, the SIT sent its final report dated
22.1.2020 to the Government, which was made available to the respondent
corporation on 18.2.2020. The said report mentions that the testing agency
had removed primary data from the cloud server in furtherance of a H
330 SUPREME COURT REPORTS [2021] 5 S.C.R.
A criminal conspiracy and recommended to consider cancelling all the
appointments made in the exams conducted by the testing agency
(including for the post of Assistant Engineer). In view of the aforesaid,
and in exercise of the liberty granted by this Court, the order dated
2.3.2020 was passed on the aforesaid findings. Aggrieved therefrom,
the present contempt petitions have been filed.
B
28. The case of the petitioners is that the High Court and also this
Court had held that the termination order dated 11.8.2017, terminating
the services of the petitioners (and other appointees) en masse, was
invalid as it was passed without adhering to the principles of natural
justice. However, the respondent corporation had yet again passed the
C order dated 2.3.2020 without following the principles of natural justice.
By doing so, the respondent corporation in effect has restored the
termination order dated 11.8.2017, under the guise of the liberty granted
by this Court. The same cannot be countenanced.
29. It was urged that the decision of this Court dated 15.11.2018
D contained a categorical direction for the respondent corporation to pass
a fresh reasoned order after providing an opportunity of hearing to the
affected parties. However, the impugned order had been passed in
violation thereof. In support, reliance is placed on the decision of this
Court in Haryana Financial Corporation & Anr. v. Jagdamba Oil
E Mills & Anr.14 to contend that the judgments are not to be read like
statutes. It was then urged that liberty to pass a fresh order ‘in accordance
with law’ cannot be stretched to such an extent that would circumvent
compliance with principles of natural justice.
30. It was contended that the reliance placed by the respondents
F upon decisions of High Court in W.P. No. 12222/2017 and Special Appeal
(Defective) No. 625/2019 and 626/2019 is misplaced and untenable as
the same has been done only to overcome the orders of this Court. It
was submitted that the executive cannot sit in appeal or revision over
the judicial orders. Reliance is placed on the decision of this Court in
Union of India & Anr. v. K.M. Shankarappa15 and Union of India v.
G Ashok Kumar Aggarwal16, to contend that an attempt to renew an
order which had been quashed by the Court, would amount to legal
malice.
14
(2002) 3 SCC 496
15
(2001) 1 SCC 582
16
H (2013) 16 SCC 147
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 331
[A. M. KHANWILKAR, J. ]
31. Per contra, the respondents would submit that the judgment A
dated 15.11.2018 had directed the respondents to act upon the High
Court’s judgment dated 28.11.2017, wherein the petitioners were
permitted to work on the post of Assistant Engineers. The respondents
duly complied with the aforementioned judgment of this Court, by
appointing the petitioners vide order dated 4.12.2018. It was then urged
B
that this Court had granted liberty to the respondents to proceed in the
matter in accordance with law. Therefore, contempt action cannot be
maintained in respect of order dated 2.3.2020 in absence of any specific
direction to afford opportunity to the petitioners despite the conclusion
and opinion recorded by the competent authority that segregation of
tainted and the untainted was not possible. The respondents contend C
that in such a case the entire selection process stood vitiated and no
notice/opportunity need be given to the petitioners. Reliance is placed
upon decisions of this Court in Union of India & Ors. v. O.
Chakradhar17, Veerendra Kumar Gautam & Ors. v. Karuna Nidhan
Upadhyay & Ors.18, M.P. State Coop. Bank Ltd., Bhopal v. Nanuram
D
Yadav & Ors.19, Nidhi Kaim v. State of Madhya Pradesh & Ors.20,
Kunhayammed & Ors. v. State of Kerala & Anr. 21 and Khoday
Distilleries Limited v. Sri Mahadeshwara Sahakara Sakkare
Karkhane Limited, Kollegal22 to contend that the respondents have
not violated the judgment dated 15.11.2018. In law, the decision of High
Court dated 28.11.2017 had merged in the judgment of this Court dated E
15.11.2018. It was then submitted that no additional direction can be
given in a contempt proceeding as the same would amount to exercise
of review jurisdiction. In support of this plea, reliance is placed upon the
decisions in Bihar Finance Service House Construction Cooperative
Society Ltd. v. Gautam Goswami & Ors.23 and Sudhir Vasudeva,
F
Chairman and Managing Director, Oil and Natural Gas Corporation
Limited & Ors. v. M. George Ravishekaran & Ors.24. It was then
urged that civil contempt would require wilful disobedience. Passing of
order dated 2.3.2020, assuming it to be a case of disobedience, the same
17
(2002) 3 SCC 146
18
(2016) 14 SCC 18 G
19
(2007) 8 SCC 264
20
(2016) 7 SCC 615
21
(2000) 6 SCC 359
22
(2019) 4 SCC 376
23
(2008) 5 SCC 339
24
(2014) 3 SCC 373
H
332 SUPREME COURT REPORTS [2021] 5 S.C.R.
A cannot be termed as wilful. Thus, no contempt action can be maintained.
Reliance was placed on decision of this Court in Ram Kishan v. Tarun
Bajaj & Ors.25, Dinesh Kumar Gupta v. United India Insurance
Company Limited & Ors.26 and Kapildeo Prasad Sah & Ors. v. State
of Bihar & Ors.27. It was then submitted that the implementation of
orders can be insisted depending on its practicability. But, in the fact
B
situation of this case, giving notice to the petitioners was not practical.
Reliance is placed upon the decision of this Court in Mohd. Iqbal
Khanday v. Abdul Majid Rather28.
RE: W.P. (C) No. 491/2020
C 32. W.P.(C) No. 491/2020 is filed for quashing and setting aside
the termination order dated 2.3.2020 and to direct the respondents to
reinstate the petitioners with full back wages and continuity of service.
Several applications were filed in the above petition seeking impleadment
as parties. I.A. No. 116777/2020, I.A. No. 106077/2020 and I.A. No.
93552/2020 have been filed by the successful candidates. Whereas, I.A.
D No. 50899/2020 is filed by the candidates who were declared unsuccessful
or non-selected in the initial merit list, but whose score was revised after
considering the objections to the answer key, so as to enter the merit list.
An application for directions being I.A. No. 50896/2020 was filed by the
aforesaid unsuccessful candidates seeking to be appointed as per the
E revised merit list and to pay arrears from January, 2017 when they ought
to have been appointed. The applications of the unsuccessful or non-
selected candidates shall be dealt with a little later.
33. The ground for filing the above writ petition is that the
termination order dated 2.3.2020 is violative of Articles 14, 19(1)(g) and
F Article 21 of the Constitution of India. That, the respondent corporation
had malafidely tried to improve its case at every stage by adding new
grounds. For instance, in the first inquiry report dated 29.5.2017, the
Chief Engineer stated that the sanction for a few posts was made by
Board of Directors of the respondent corporation, which was not
competent to do so, as only the Government had authority to sanction
G posts. Further, the candidates with lower marks in the written test were
given higher marks in the interview and that the entire selection process
25
(2014) 16 SCC 204
26
(2010) 12 SCC 770
27
(1999) 7 SCC 569
28
H (1994) 4 SCC 34
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 333
[A. M. KHANWILKAR, J. ]
was rushed through within a period of less than one month from the date A
of advertisement issued on 13.12.2016 and appointment orders issued
on 3.1.2017, presumably because election code of conduct was about to
come into force. Thereafter, in second inquiry report dated 7.7.2017, the
Chief Engineer added that the respondent corporation could not have
recruited without permission of the Finance Department of the
B
Government in view of the loan of Rs.300 crores given by the Government
to the respondent corporation. Further, the examination results were
published without inviting objections, some of the answers in the answer
key and some questions in the question paper were wrong and that answer
sheets of 4 successful candidates were identical.
34. Then, in the termination order dated 11.8.2017, it was added C
that the permission of Election Commission of India should have been
taken as the Model Code of Conduct had come into effect prior to joining
date. Before the High Court, it was urged that the respondent corporation
was facing shortage of funds and was not in a position to pay so many
additional employees and that provision was not made for reservation of D
posts in accordance with law. Thereafter, in the review application, the
ground taken was that on the basis of revaluation, some of the selected
candidates would not even have been eligible for the interview.
35. The petitioners would submit that the writ petition is
maintainable in view of violation of their fundamental rights under Articles E
14, 19(1)(g) and 21 of the Constitution. Reliance is placed upon the
decision of this Court in Romesh Thappar v. State of Madras29. It was
urged that the action of the respondents in adding new grounds at each
stage shows that the respondent corporation despite being ‘State’ under
Article 12 of the Constitution, has been prosecuting the matter like a
desperate private litigant, under dictation. F
36. The petitioners would then urge that the impugned order had
been passed by the respondents whilst relying upon the opinion of experts
that there was a possibility that the response filed by certain candidates
‘might have been doctored’, which is a mere speculation, without any
data in its support. It was submitted that the data upon which the G
respondents relied, to pass the order dated 2.3.2020, was available even
at the time of passing of the judgment dated 15.11.2018 by this Court;
and is in the nature of ‘being repacked in a fresh package’ and the same
29
1950 SCR 594 H
334 SUPREME COURT REPORTS [2021] 5 S.C.R.
A cannot be permitted as per decision of this Court in Manohar Lal (Dead)
by LRs. v. Ugrasen (Dead) by LRs. & Ors.30.
37. It was urged that the respondents deliberately did not ask the
testing agency for checksum data until one year period of storing had
expired. It was then pointed out that the testing agency, in an affidavit
B before the High Court (in W.P. (S/S) No. 7647/2020 – relating to another
examination), had stated certain facts concerning the present selection
process. Particularly, that the primary data was not deleted but merely
moved from the cloud server to data storage centre in accordance with
its Data Retention Policy and is still available with the testing agency
and that the respondent corporation had never approached them for
C obtaining the same. Therefore, the opinion given by the two experts was
based on conjectures and surmises that the primary data is not available.
38. It was submitted that the SIT Report dated 22.1.2020 and the
reports of Central Forensic Science Laboratory (CFSL) dated 28.8.2019,
19.11.2019, 11.12.2019 and 1.1.2020 (considered by the SIT in its report)
D relied upon by the respondents in passing the impugned order ought to
have been served upon the petitioners before taking any adverse action
against them, in light of dictum in Union of India & Ors. v. S.K.
Kapoor31. Further, the SIT report is in the nature of a final report by an
investigative agency and cannot be treated as conclusive proof of
E malpractices. Moreover, the petitioners cannot be made to suffer at the
cost of any malfeasance by the testing agency.
39. It was urged that the documents relied upon by the respondents
have never been proved or subjected to scrutiny by a fact-finding authority
or tribunal, nor had the petitioners been given an opportunity to meet the
F assertions made therein. That the testing agency had by letter dated
7.11.2017 intimated the SIT that primary data was stored in data storage
facility and not the hard drive, despite which, the SIT raided its office on
10.9.2018 and seized random hard drives of ‘dump data’ and sent the
same to CFSL. Therefore, the very basis of CFSL’s analysis is flawed.
G 40. Further, despite the finding in SIT report that the testing agency
was a part of criminal conspiracy for deleting the primary data, the
respondents continued to engage the testing agency for conducting
examinations. The respondent corporation procured a letter dated
30
(2010) 11 SCC 557
31
H (2011) 4 SCC 589
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 335
[A. M. KHANWILKAR, J. ]
31.8.2020 from the Addl. Chief Secretary, Government of U.P. A
recommending to the DGP, SIT that the testing agency be blacklisted,
about three years after the irregularities came to its knowledge, which
clearly demonstrates malafides. It was then submitted that there is no
substance in the argument that the selection process was hastily
completed as the same was in full compliance with the advertisement
B
and applicable SoP and Rules of the respondent corporation. Moreover,
the said argument was rejected by the High Court in judgment dated
28.11.2017.
41. It was then urged that the only liberty granted to the respondents
is to rework the answer sheets based on the corrections, after giving
candidates an opportunity of hearing. Further, the respondent corporation C
had failed to discharge the burden that the response sheets were
manipulated and argued of inability to verify the veracity of examination
process, which cannot be permitted.
42. The submission that principles of natural justice were violated
was akin to the submissions made in the above contempt petitions. It D
was submitted that there can be no exception to the principle of audi
alter partem. Reliance is placed upon decision of this Court in Nisha
Devi v. State of Himachal Pradesh & Ors.32 and Indian Institute of
Information Technology, Deoghat Jhalwa, Allahabad & Anr. v. Dr.
Anurika Vaish & Ors.33 to submit that when termination order was set E
aside for not hearing the affected parties before passing it and liberty is
granted to pass a fresh reasoned order, the employer-State cannot pass
another fresh termination order without hearing the affected persons
yet again.
43. On the other hand, the respondents would raise a preliminary F
objection as regards the maintainability of the Writ Petition as the alternate
remedy under Article 226 of the Constitution was not exhausted, whilst
placing reliance on decisions of this Court in P.N. Kumar & Anr. v.
Muncipal Corporation of Delhi34, Kanubhai Brahmbhatt v. State of
Gujarat35, Kunga Nima Lepcha & Ors. v. State of Sikkim & Ors.36,
Confederation of All Nagaland State Services Employees’ Assn. & G
32
(2014) 16 SCC 392
33
(2017) 5 SCC 660
34
(1987) 4 SCC 609
35
1989 Supp (2) SCC 310
36
(2010) 4 SCC 513
H
336 SUPREME COURT REPORTS [2021] 5 S.C.R.
A Ors. v. State of Nagaland37 and Amrit Lal Berry v. Collector of Central
Excise, New Delhi & Ors.38. It was also pointed out that parties similarly
placed to that of the petitioners filed writ petition before the High Court
being W.P. (C) No. 13083/2020 (Service Single) and even the petitioners
ought to have approached High Court.
B 44. With reference to petitioners’ reliance on affidavit filed by the
testing agency, the respondents would submit that the onus was on the
testing agency to give correct and complete data to the SIT for
investigation. It was pointed out that the SIT had recorded the statement
of Mr. Vishvajeet Singh, Technical and Delivery Head of the testing
agency, wherein he stated that the examination data was kept in the
C cloud only for a month, after which it was downloaded onto the ‘local
environment’ - the hard disk. Further, the testing agency had itself
accepted in the certificate provided to the SIT under Section 65-B of the
Indian Evidence Act, 187239, that the original primary data had been
deleted and the backup data does not contain any system logs. And that,
D the deletion of primary server data made it impossible to re-analyse the
response sheets using the secondary data provided in the form of CDs,
as the same is not accurate. It was then urged that the respondent
corporation had taken prompt action against its officials involved in the
irregularities committed in the recruitment process.
45. It was submitted that the respondents had rightly cancelled
E the entire recruitment process and terminated the services of all the
recruits in accordance with law as the illegality was of such nature that
the tainted candidates could not have been segregated from the untainted
and the veracity of the entire examination process was doubtful. Further,
it was urged that if the tainted and untainted candidates could be
F segregated, the show cause notice would have been issued to the
concerned candidate. However, since the segregation was not possible
and did not take place, the entire recruitment process had to be cancelled
in view of O. Chakradhar40. Thus, no individual show cause notice
was necessary in law. This submission of the respondents is similar to
the stand taken by them in the above contempt petitions.
G
46. It was then urged that even if an opportunity of hearing is
given to the candidates, it would be an empty formality as the respondents
37
(2006) 1 SCC 496
38
(1975) 4 SCC 714
39
For short, ‘the 1872 Act’
40
H supra at Footnote No. 17
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 337
[A. M. KHANWILKAR, J. ]
do not have primary data to compare actual correct answers given by A
the candidates, as it would be impossible to segregate the tainted and
untainted candidates in absence of the primary data. Even if an opportunity
of hearing is granted, the decision of the respondent corporation would
remain the same. Reliance in that regard was placed upon decision of
this Court in Dharampal Satyapal Limited v. Dy. Commissioner of
B
Central Excise, Gauhati & Ors. 41.
RE: IMPLEADMENT APPLICATIONS BY NON-
SELECTED CANDIDATES:
47. Coming to the impleadment applications filed by non-selected
candidates, their case is that upon objections raised by the candidates C
that the answer key was not released, the respondents had published the
answer sheet and answer key on 28.2.2017. The applicants found various
errors therein and being aggrieved, they had filed W.P. Nos. 10667/2017
and 21876/2017 before the High Court, wherein the High Court directed
the respondents to conduct an enquiry in the alleged irregularities.
Pursuant thereto, an inquiry was conducted wherein the errors were D
taken note of and accordingly, the testing agency had submitted a revised
list to the respondents. In that revised merit list, these applicants had
stood higher in the merit list than the appointees. The respondents, instead
of reworking the appointments in accordance with the revised list, had
annulled the entire selection process first vide order dated 11.8.2017 E
(which was later set aside) and then again by order dated 2.3.2020.
48. These applicants would submit that various grounds noted by
the respondents in the order dated 2.3.2020 had already been rejected
by the High Court in its judgment dated 28.11.2017, whereby the earlier
order dated 11.8.2017 was set aside. The High Court in the said judgment F
had held that there was no prohibition imposed against appointment on
regular selection in the model code of conduct and the post of Assistant
Engineers were regular in nature. That the requirement mandating prior
sanction of the State Government was not applicable to the present case
as the requirement was made by G.O. dated 13.12.2016 whereas the
selection process in question had commenced on 19.11.2016. That the G
permission to advertise the posts was made by the Chairman, which
was ratified by the Board of Directors of the respondent corporation.
The argument of malafide in the selection process was rejected by the
High Court and the said judgment was upheld by this Court.
41
(2015) 8 SCC 519 H
338 SUPREME COURT REPORTS [2021] 5 S.C.R.
A 49. It was urged that the testing agency undertook the exercise of
rectification of incorrect entries in the key and submitted a report to the
respondents dated 8.8.2017 containing the revised merit list and therefore,
the only option available to the respondents was to act upon the revised
merit list. It was submitted that cancellation of entire selection process
(by order dated 2.3.2020) when it was merely a case of certain infirmities
B
in the evaluation, would be unreasonable, arbitrary and disproportionate.
In support of this plea, reliance is placed upon decisions of this Court in
Union of India & Ors. v. Rajesh P.U. Puthuvalnikathu & Anr.42,
Rajesh Kumar & Ors. v. State of Bihar & Ors. 43 and K.
Channegowda & Ors. v. Karnataka Public Service Commission &
C Ors. 44.
50. It was then urged that the principle of proportionality has been
recognised as an aspect of Article 14 by this Court in Modern Dental
College and Research Centre & Ors. v. State of Madhya Pradesh &
Ors.45 and in view whereof, the cancellation of entire selection process,
D being disproportionate, is violative of Article 14.
51. Further, it was urged that even in the case of malpractice and
malafide, entire selection process should not be cancelled but the tainted
and untainted candidates ought to be segregated. In support of this plea,
reliance was placed on decisions of this Court in Inderpreet Singh
E Kahlon & Ors. v. State of Punjab & Ors.46, Girjesh Shrivastava &
Ors. v. State of Madhya Pradesh & Ors.47 and Joginder Pal & Ors.
v. State of Punjab & Ors.48. It was then urged that the mandate of
decisions of High Court dated 28.11.2017 and 25.7.2018 and of this Court
dated 16.3.2018 and 15.11.2018 was to re-work the answer sheets and
a limited liberty to that effect was given to the respondents. The
F applicants would then take a stand similar to that of the petitioners in the
above contempt petitions, to submit that the judgment of a court has to
be understood in its entirety and cannot be read as a statute, whilst
relying upon the decision of this Court in Purnendu Mukhopadhyay &
42
G (2003) 7 SCC 285
43
(2013) 4 SCC 690
44
(2005) 12 SCC 688
45
(2016) 7 SCC 353
46
(2006) 11 SCC 356
47
(2010) 10 SCC 707
48
(2014) 6 SCC 644
H
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 339
[A. M. KHANWILKAR, J. ]
Ors. v. V.K. Kapoor & Anr.49. Therefore, the order dated 2.3.2020 A
passed by the respondents is against the mandate of the above judgments.
RE: TRANSFER PETITION:
52. In T.P. (C) No. 1209/2020, the petitioners have approached
this Court under Article 139A for transfer/withdrawal of Writ Petition
(C) No. 13083/2020 (Service Single) pending before the High Court to B
this Court as the subject matter of the said writ petition (impugned order
dated 2.3.2020) is already pending challenge before this Court in W.P.
No. 491/2020 and companion contempt petitions. In W.P. (C) No. 13083/
2020 (Service Single) before the High Court, the petitioners have relied
upon opinion of their own expert, Dr. A.V. Subrahmanyam, Assistant C
Professor at IIIT Delhi, who had discredited the IIT and IIIT reports
and opined that the ‘checksum’ method of fingerprinting not having been
deployed shall have no bearing on the candidates as they had no role to
play in the same.
53. These petitioners would submit that the issue of veracity and
D
weight of experts shall be examined in a departmental inquiry and cannot
be gone into before this Court. Further, the petitioners urge that they
would like to present their expert and to cross examine other experts, so
that the truth could be distilled. That the respondents ought to have had
a departmental inquiry by giving the petitioners an opportunity to hear, so
that the parties could have led their evidence and the decision should E
have been taken on the basis of the outcome of such inquiry.
54. We have heard Mr. Mukul Rohatgi, Ms. Meenakshi Arora,
Mr. Ravindra Raizada, learned senior counsel, Mr. Gaurav Mehrotra,
Mr. Kumar Shivam and Mr. Rohit Anil Rathi, learned counsel - for the
petitioners; Mr. Nizam M. Pasha for the impleaded petitioners; Ms. F
Sanskriti Pathak, learned counsel for applicants (candidates successful
as per revised merit list); and Mr. Vikas Singh, learned senior counsel
for the respondents.
55. The broad points that arise for our consideration are:
1. Whether the order dated 4.12.2018 passed by the respondents G
is in the teeth of judgment of this Court dated 15.11.2018, requiring
compliance of judgment of High Court dated 28.11.2017, for
deliberate failure to reinstate with continuity of service and to pay
arrears to the petitioners?
49
(2008) 14 SCC 403 H
340 SUPREME COURT REPORTS [2021] 5 S.C.R.
A 2. Whether the termination order dated 2.3.2020 passed by the
respondents is in wilful disobedience of and in the teeth of judgment
of this Court dated 15.11.2018, for not following the principles of
natural justice and is thus non-est in law?
CONSIDERATION
B 56. At the outset, we deem it appropriate to first answer the
preliminary objection regarding maintainability of writ petition under
Article 32 of the Constitution of India. We have no hesitation in rejecting
this preliminary objection for more than one reason. It is well-established
position that if the termination order is assailed on the ground of violation
C of principles of natural justice or fundamental rights guaranteed under
Part III of the Constitution, such a grievance can be brought before the
constitutional Court including by way of writ petition under Article 32 of
the Constitution of India. It is a different matter that this Court may be
loath in entertaining the grievance directly under Article 32 and instead
relegate the petitioner(s) before the High Court to first exhaust the remedy
D under Article 226 of the Constitution of India. That is also because this
Court will then have the advantage of the judgment of the High Court on
relevant aspects. In other words, it is not a question of maintainability of
writ petition, but one of exercise of discretion with circumspection in
entertaining writ petition under Article 32 in such matters. Further, in the
E present case, there are other proceedings pending in the form of contempt
petitions and a transfer petition wherein the termination order dated
2.3.2020 is the subject matter. Thus, the arguments in these cases will
be overlapping. In that, the self-same order has been impugned in the
writ petition filed before this Court. The fact that other affected similarly
placed persons have filed writ petitions directly before the High Court
F and which are stated to be pending, can be no impediment for this Court
in entertaining and deciding the writ petition. For, the issue regarding the
purport of orders passed by this Court needs to be answered appropriately
in contempt petitions only by this Court. It is not open to the High Court
to interpret or explain the order passed by this Court in previous
proceedings between the parties. The High Court can only follow the
G
dictum of this Court which is binding on it. Accordingly, we are not
impressed by the preliminary objection taken by the respondents regarding
the maintainability of writ petition under Article 32 of the Constitution by
similarly placed persons directly filed before this Court to assail the
impugned order dated 2.3.2020, which is also subject matter of second
H set of contempt petitions.
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 341
[A. M. KHANWILKAR, J. ]
57. As aforesaid, we are dealing with two sets of contempt A
petitions. The first set complains about non-compliance of order dated
28.11.2017 passed by the High Court, which came to be upheld by this
Court consequent to disposal of special leave petitions being SLP(C)
Nos. 5410-5419/2018 vide order dated 16.3.2018, and more particularly,
reiterated by this Court in its order dated 15.11.201850 directing the
B
respondents to first act upon the decision of the High Court dated
28.11.2017 and only thereafter proceed in the matter in accordance with
law by passing a fresh, reasoned order. It is not in dispute that after the
judgment of this Court dated 15.11.2018, a consequential order was
passed by the High Court on 26.11.2018. The respondents thus issued
order dated 4.12.2018 (reproduced in paragraph 2 above), reengaging C
the petitioners on the concerned posts without continuity of service and
arrears.
58. The grievance of the petitioners is that the unambiguous
direction given by the High Court and upheld by this Court was to reinstate
the petitioners on the same position with full back wages. No more and D
no less. The respondents were, therefore, obliged to issue order of
reinstatement with continuity of service and back wages. The argument
is attractive at the first blush, but on deeper scrutiny of the orders passed
by the High Court and finally by this Court, it is noticed that the direction
is limited to permit the petitioners to work on the posts of Assistant
Engineer (Civil), Assistant Engineer (Electric/Mechanical) and Assistant E
Engineer (Computer Science and Electronics and Communication/
Electrical and Electronics) and to pay them regular salary month by
month as and when it becomes due and payable to them. That can be
discerned from the last paragraph of the order dated 28.11.2017
(reproduced in paragraph 9 above). On similar lines, the High Court F
disposed of another writ petition challenging the termination order dated
11.8.2017 passed by the respondents, vide order dated 12.12.2017
(reproduced in paragraph 10 above). In these orders, the expression
used by the High Court is “to permit the petitioners to work on the
concerned posts and to pay them regular salary as and when the same
accrues to them”. The order dated 28.11.2017 passed by the High Court G
was upheld by this Court on 16.3.2018. In that order, after recording
contentions of both sides, while disposing of petitions it is observed as
follows: -
50
supra at Footnote No. 2 H
342 SUPREME COURT REPORTS [2021] 5 S.C.R.
A “…..
Be that as it may, having gone through the impugned judgment,
we do not find that the door is yet closed. It is for the petitioners,
if they are so advised, to approach the High Court itself for a
liberty to re-work the answer sheets on the basis of the corrections,
B in case the High Court is also of the view that the corrections
need to be made.
…..”
The respondents had, therefore, pursued review petition as per
the liberty given by this Court. The same came to be disposed of by the
C High Court on 25.7.2018. On perusal of that order (reproduced in
paragraph 12 above), there is nothing to indicate that the High Court
expressly directed reinstatement of petitioners with continuity of service
and back wages, as such. Even in the decision of this Court dismissing
the appeals filed by respondents, vide order dated 15.11.2018 (reproduced
D in paragraph 14 above), no such direction has been issued. The limited
direction is that the respondents must first act upon the decision of the
High Court dated 28.11.2017 and only thereafter proceed in the matter
in accordance with law by passing a fresh, reasoned order.
59. After cogitating over the orders passed by the High Court and
E this Court referred to above, it becomes amply clear that the High Court
had quashed and set aside the first termination order dated 11.8.2017
solely on the ground that it was passed in violation of principles of natural
justice and further observed that the selection as a whole was not liable
to be cancelled without undertaking an exercise to separate the tainted
candidates from the untainted. While so observing, it was made clear
F that the respondents were free to pass a fresh, reasoned order in
accordance with law.
60. In light of the aforesaid discussion, we have no hesitation in
accepting the explanation offered by the respondents that going by the
text of the orders passed by the High Court and this Court, it was open
G to the respondents to issue order (dated 4.12.2018) to reengage the
petitioners on the same posts from the date of order and to pay them
regular salary month by month thereafter or as and when it would accrue
to them. The orders passed by the High Court and this Court, as
aforementioned, do not contain explicit direction to reinstate the petitioners
with continuity of service and back wages as such. Instead, the expression
H
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 343
[A. M. KHANWILKAR, J. ]
used is only “to permit the petitioners to work on the posts” which were A
held by them at the time of their termination and “to pay them regular
salary month by month” and “as and when the same accrues to them”.
Thus understood, it is not a case of wilful disobedience of the orders of
the Court.
61. Arguendo, the interpretation as propagated by the petitioners B
of the stated orders dated 28.11.2017 passed by the High Court and
16.3.2018 of this Court, is a possible view. Being another possible view,
the benefit must then be given to the respondents. For, it would certainly
not be a case of wilful disobedience as enunciated by this Court in Sushila
Raje Holkar v. Anil Kak (Retired)51 which follows the dictum of this
Court in State of Bihar v. Rani Sonabati Kumari 52, Purnendu C
Mukhopadhyay53 and Maruti Udyog Limited v. Mahinder C. Mehta
& Ors. 54.
62. It is well settled that contempt action ought to proceed only in
respect of established wilful disobedience of the order of the Court. This
Court in paragraph 12 of the decision in Ram Kishan55 observed thus: - D
“12. Thus, in order to punish a contemnor, it has to be established
that disobedience of the order is “wilful”. The word “wilful”
introduces a mental element and hence, requires looking
into the mind of a person/contemnor by gauging his actions,
which is an indication of one’s state of mind. “Wilful” means E
knowingly intentional, conscious, calculated and deliberate
with full knowledge of consequences flowing therefrom. It
excludes casual, accidental, bona fide or unintentional acts or
genuine inability. Wilful acts does not encompass involuntarily or
negligent actions. The act has to be done with a “bad purpose F
or without justifiable excuse or stubbornly, obstinately or
perversely”. Wilful act is to be distinguished from an act done
carelessly, thoughtlessly, heedlessly or inadvertently. It does not
include any act done negligently or involuntarily. The deliberate
conduct of a person means that he knows what he is doing
and intends to do the same. Therefore, there has to be a G
51
(2008) 14 SCC 392
52
AIR 1961 SC 221
53
supra at Footnote No. 49
54
(2007) 13 SCC 220
55
supra at Footnote No. 25 H
344 SUPREME COURT REPORTS [2021] 5 S.C.R.
A calculated action with evil motive on his part. Even if there
is a disobedience of an order, but such disobedience is the result
of some compelling circumstances under which it was not possible
for the contemnor to comply with the order, the contemnor cannot
be punished. “Committal or sequestration will not be ordered unless
contempt involves a degree of default or misconduct.” (Vide S.
B
Sundaram Pillai v. V.R. Pattabiraman56, Rakapalli Raja Ram
Gopala Rao v. Naragani Govinda Sehararao 57 , Niaz
Mohammad v. State of Haryana58, Chordia Automobiles v. S.
Moosa 59 , Ashok Paper Kamgar Union v. Dharam
Godha 60 , State of Orissa v. Mohd. Illiyas 61 and Uniworth
C Textiles Ltd. v. CCE62).”
(emphasis supplied)
It is useful to recall the exposition in Director of Education,
Uttaranchal63 and also in K.G. Derasari & Anr. v. Union of India &
Ors. 64; wherein this Court observed that in exercising contempt
D jurisdiction, the primary concern must be whether the acts of commission
or omission can be said to be contumacious conduct of the party who is
alleged to have committed default in complying with the directions given
in the judgment and order of the Court. Further, the Court ought not to
take upon itself power to decide the original proceedings in a manner not
E dealt with by the Court passing the judgment and order. It is also not
open to go into the correctness or otherwise of the order or give additional
directions or delete any direction, which course could be adopted only in
review jurisdiction and not contempt proceedings.
63. Reliance placed on Deepali Gundu Surwase 65 by the
F petitioners is inapposite. It was a case of wrongful termination and entitled
the petitioner therein relief of back wages. The respondents have instead
relied upon the exposition in P. Karupaiah (Dead) through Legal
56
(1985) 1 SCC 591
57
(1989) 4 SCC 255
58
(1994) 6 SCC 332
G 59
(2000) 3 SCC 282
60
(2003) 11 SCC 1
61
(2006) 1 SCC 275
62
(2013) 9 SCC 753
63
supra at Footnote No. 13
64
(2001) 10 SCC 496
65
supra at Footnote No. 7
H
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 345
[A. M. KHANWILKAR, J. ]
Representatives v. General Manager, Thruuvalluvar Transport A
Corporation Limited66 and J.K. Synthetics Ltd.67 which has restated
the legal position regarding back wages. It has been held that it is not
automatic or natural consequence of reinstatement.Suffice it to mention
that for reasons already recorded hitherto including that the limited
direction given by the High Court and not disturbed by this Court was to
B
permit the petitioners to work on the concerned posts and to pay them
regular salary as and when the same accrues to them, the plea under
consideration needs to be recorded only to be rejected.
64. Be that as it may, keeping in mind the settled legal position, we
have no hesitation in concluding that the case at hand does not qualify
the test of contumacious, much less wilful disobedience of the order of C
the Court by the officers of the respondents as such. In other words, the
basis on which the contempt action against the respondents in reference
to order dated 4.12.2018 issued by the respondents, has been initiated is
tenuous. Hence, the same is rejected.
65. We would now revert to the second set of contempt D
petitions, which emanate from termination order dated 2.3.2020 issued
by the respondents. These petitions essentially proceed on the allegation
that the respondents committed wilful disobedience of the order of this
Court dated 15.11.2018 passed in Civil Appeal Nos. 11017-11018/2018
in not affording prior opportunity of hearing to the petitioners and similarly E
placed persons despite express direction contained in the said order. For
considering this grievance, we may reproduce the relevant portion of
the order dated 15.11.2018, which reads thus: -
14. The limited plea taken before this Court as noted in the first
paragraph of order dated 16th March, 2018 was to allow the F
appellants to re-work the question and answer sheets and revise
the merit list and issue fresh, reasoned order after providing
opportunity of hearing to the affected candidates. That option
has been kept open. It is for the appellants to pursue the same. In
other words, the appellants must, in the first place, act upon
the decision of the High Court dated 28th November, 2017 G
whereby the order passed by the Chief Engineer dated 11th
August, 2017 has been quashed and set aside. The
appellants may then proceed in the matter in accordance
66
(2018) 12 SCC 663 (paragraph 10)
67
supra at Footnote No. 10 H
346 SUPREME COURT REPORTS [2021] 5 S.C.R.
A with law by passing a fresh, reasoned order. Indeed, while
doing so, the appellants may take into consideration the
previous inquiry reports as also all other relevant material/
documents which have become available to them. We make
it clear that we have not dilated on the efficacy of the opinion
given by the experts of the “IIIT Allahabad and IIT
B
Kanpur.”
(emphasis supplied)
66. The Court had set aside the termination order dated 11.8.2017
issued by the respondents, solely on the ground that it was in violation of
C principles of natural justice. At the same time, liberty was given to the
respondents to pass a fresh order in accordance with law including by
undertaking exercise of segregating the tainted from the untainted
candidates. Indeed, the Court expected that before taking any precipitative
action against the petitioners, the respondents must afford opportunity
of hearing to them. This observation is contextual. It would come into
D play dependent upon the opinion eventually formed by respondents after
due consideration of the material collated by them to distinguish the tainted
and untainted candidates, was possible or otherwise. Had the respondents
concluded that it was possible to segregate tainted from untainted
candidates, they would have been obliged to comply with the directions
E given by the High Court and restated by this Court in order dated
15.11.2018, to afford prior opportunity of hearing to the petitioners and
similarly placed persons before passing fresh, reasoned order. However,
from the subject termination order dated 2.3.2020, which is a speaking
order, it is crystal clear that after due enquiry and taking into consideration
all aspects of the matter, in particular the enquiry reports and the opinion
F of the experts including final report of SIT, the respondents were of the
considered opinion that it was not possible to segregate tainted from the
untainted candidates for reasons recorded in that order. We are not
inclined to go into the correctness of the said reasons, because it is
subject matter of challenge in writ petitions pending before the High
G Court (as pointed out in Annexure R-29 of the Supplementary Affidavit),
filed not only by Assistant Engineers, but also by Junior Engineers, Routine
Grade Clerks and others.
67. We would, therefore, confine our analysis as to whether the
respondents were justified in passing subject termination order dated
H 2.3.2020 without giving prior opportunity of hearing to the petitioners. In
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 347
[A. M. KHANWILKAR, J. ]
light of the conclusion reached by the respondents in the stated order A
dated 2.3.2020 — that it was not possible to segregate the tainted from
the untainted candidates, in law, it must follow that the respondents could
annul the entire selection process and pass the impugned order without
giving individual notices to the petitioners and similarly placed persons.
We are fortified in taking this view in terms of the exposition in O.
B
Chakradhar68 and the subsequent decisions of this Court in Joginder
Pal69, Veerendra Kumar Gautam 70 and Vikas Pratap Singh & Ors.
v. State of Chhattisgarh & Ors.71, adverted to in paragraph 12 of the
judgment dated 15.11.201872 of this Court while disposing of earlier appeals
between the parties.
68. In other words, since the respondents have concluded that it C
was not possible to segregate tainted from the untainted candidates
because of the reasons noted in the termination order dated 2.3.2020, in
law, there was nothing wrong in respondents issuing the said termination
order without affording prior opportunity to the petitioners and similarly
placed persons. Had it been a case of even tittle of possibility in D
segregating the tainted from the untainted candidates, which exercise
the respondents were permitted to engage in, in terms of the decision of
this Court dated 15.11.2018, it would have been a different matter. In
that case alone, the petitioners and similarly placed persons could complain
of wilful disobedience of the order passed by this Court dated 15.11.2018.
E
69. Having said thus, we must conclude that even the second set
of contempt petitions in reference to the subject termination order dated
2.3.2020 being in violation of direction given by this Court to afford
opportunity to the petitioners vide order dated 15.11.2018, must fail.
70. Considering the fact that multiple writ petitions have been F
filed by different groups of affected persons before the igHigh Court
being similarly placed persons against the subject termination order dated
2.3.2020 and as the same are pending, as aforesaid, to obviate even
slightest of prejudice being caused to the petitioners in those cases, who
are not before us, we refrain from examining the arguments regarding
the justness and validity of the stated order and leave all other contentions G
68
supra at Footnote No. 17
69
supra at Footnote No. 48
70
supra at Footnote No. 18
71
(2013) 14 SCC 494
72
supra at Footnote No. 2
H
348 SUPREME COURT REPORTS [2021] 5 S.C.R.
A open to the parties to be pursued before the High Court in pending
proceedings. Consequently, we would dispose of the transfer petition, as
well as, the writ petition by relegating the petitioners therein including
the applicants in intervention/impleadment applications, to pursue their
grievance in the form of writ petitions before the High Court, which
could be heard by the High Court analogously along with all other pending
B
writ petitions involving overlapping issues to obviate any inconsistency
and conflicting findings regarding the same subject matter in any manner.
Indeed, in the event the High Court agrees with the conclusion recorded
by the respondents in the stated order dated 2.3.2020, that it is not possible
to segregate the tainted from the untainted candidates, the High Court
C would be bound by the observations made by us in this judgment. For, in
that eventuality, in law, it would not be necessary for the respondents to
give prior hearing or afford opportunity to the petitioners and similarly
placed persons before annulling the entire selection process and issuing
the termination order under challenge.
D 71. Accordingly, while discharging the show-cause notices issued
in the concerned contempt petitions and disposing of all the contempt
petitions, we deem it appropriate to relegate the petitioners in the transfer
petition and the writ petition filed in this Court, before the High Court to
pursue their remedy under Article 226 of the Constitution to assail the
order dated 2.3.2020 with further direction that all petitions involving
E overlapping issues and referred to in Annexure R-29 of the Supplementary
Affidavit or any other writ petition pending or to be filed, list whereof be
furnished by the parties to the High Court, for being heard analogously.
We request the High Court to expeditiously dispose of the writ petitions,
leaving all contentions other than decided in this judgment, open to the
F respective parties to be raised before the High Court. The same be
decided on its own merits as per law.
72. In view of the above, we pass the following order: -
(1) Show-cause notices issued in the respective contempt
petitions stand discharged. Contempt petitions are dismissed;
G
(2) The transfer petition stands rejected, as a result of which
the writ petitions referred to therein will now proceed before
the High Court in terms of this judgment;
(3) The writ petition is disposed of with liberty to the petitioners
therein including applicants in intervention/impleadment
H
ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS. 349
[A. M. KHANWILKAR, J. ]
applications to pursue their remedy before the High Court A
by way of writ petition under Article 226 of the Constitution,
if so advised. That writ petition be decided on its own merits
in accordance with law keeping in mind the observations
made in this judgment along with other pending or fresh
writ petitions involving similar issues; and
B
(4) We request the High Court to take up all writ petitions
involving overlapping issues together for analogous hearing
expeditiously. We leave all contentions open except the
issues decided in this judgment.
73. There shall be no order as to costs. All pending interlocutory C
applications stand disposed of in terms of this judgment.
Devika Gujral Petitions disposed of.
D
E
F
G
H
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