V. Achuthan Nair v. K.M. Unnikrishnan Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 23RD DAY OF MAY 2013/2ND JYAISHTA 1935** **CON.CASE(C).NO. 189 OF 2013 (S) --------------------------------------------------** **AGAINST JUDGMENT IN WP(C) 36520/2007 DATED 17-12-2007** **PETITIONER(S)/PETITIONER: ------------------------------------------** **V.ACHUTHAN NAIR, AGED 58 YEARS S/O.LATE VASUDEVAN NAIR, SECRETARY KERALA HEALTHRESEARCH & WELFARE SOCIETY(KHRWS)EMPLOYEES ASSOCIATION(INTUC) REG.NO.01-09/2004, STATE COMMITTEEOFFICE, POOJAPPURA THIRUVANANTHAPURAM-695012.** **BY ADVS.SRI.R.S.KALKURA SRI.M.S.KALESH SMT.A.V.PRIYA SRI.HARISH GOPINATH SRI.GENS GEORGE ELAVINAMANNIL** ## **RESPONDENT(S)/2ND RESPONDENT:** **-----------------------------------------------------** **K.M .UNNIKRISHNAN NAIR, AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONERMANAGING DIRECTOR KERALA HEALTH RESEARCH & WELFARESOCIETY GENERAL HOSPITAL CAMPUS, RED CROSS ROAD THIRUVANANTHAPURAM-695035.** ## **BY ADV. SRI.M.AJAY,SC,KERALA HEALTH RESEARCH & WELFARE SOCIETY** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 23-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **CCC NO.189 OF 2013** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF THE JUDGMENT DATED 17.12.2007 IN W.P(C) NO.36520 OF 2007** **ANNEXURE A2 TRUE COPY OF THE REPLY DATED 19.03.2012, ISSUED BY THE STATE PUBLIC INFORMATION OFFICER OF THE SOCIETY.** **ANNEXURE A3 TRUE COPY OF THE ADVOCATE'S NOTICE, DATED 31.05.2012 CAUSED TO HAVE BEEN ISSUED BY THE PETITIONER TO THE RESPONDENT.** **ANNEXURE A4 TRUE COPY OF THE REPLY DATED 13.06.2012 ISSUED BY THE RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS:** **ANNEXURE I A TRUE COPY OF THE PROCEEDINGS ORDER NO.A8 - 2089/07/KHRWS DATED 22.11.2007.** **ANNEXURE II A TRUE COPY OF THE PROCEEDINGS ORDER NO.A8-1579/07/KHRWS DATED 18.8.2007.** **ANNEXURE III A TRUE COPY OF THE EXTRACT OF THE RELEVANT DECISIONS (ITEM NO.12) OF THE 107[TH] MEETING OF THE GOVERNING BODY OF KHRWS DATED 20.8.2005.** **ANNEUXRE IV A TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P(C)NO.2742 OF DATED 23.2.2010.** **TRUE COPY** **P.S. TO JUDGE** ## **THOMAS P.JOSEPH, J.** **==================================== Cont. Case(C) No.189 of 2013 ==================================== Dated this the 20[th] day of May, 2013** ## **J U D G M E N T** Petitioner filed W.P(C) No.36520 of 2007 to issue a writ of mandamus commanding the respondents to make appointments of the employees to the respondent (the 2[nd] respondent in the Writ Petition) through the Employment Exchange or Public Service Commission without making any such appointment directly and to issue a writ of mandamus to the respondent to consider and dispose of Ext.P5 as expeditiously as possible. 2. When that Writ Petition came up for hearing on admission on 17.12.2007, this Court after hearing the learned counsel for the petitioner and the learned Standing Counsel for the respondent disposed of the Writ Petition by Annexure-A1, judgment. The said judgment reads as under: “On instructions, the learned Standing Counsel for the second respondent submits that no steps are being taken to effect any appointment to the second respondent otherwise Cont. Case (C) No.189 of 2013 -: 2 :- than to the Employment Exchange. It is further mentioned that no appointment as has been done in the case of Exts.P4 and P4(a), will also be done hereafter. Submission is recorded. No further grievance survives in so far as the petitioner is concerned at this stage. In the circumstances, writ petition is closed without prejudice to the petitioner's right to approach this Court in future, if the need arises and if so advised”. Petitioner complains that in violation of the undertaking the learned Standing Counsel for the respondent (2[nd] respondent in the Writ Petition) had made as revealed by Annexure-A1, judgment which according to the petitioner has the effect of an order of the court, the respondent has effected appointments directly as revealed by Annexure-A2, dated 19.03.2012. According to the petitioner, appointments vide Annexure-A2 are in flagrant violation of the undertaking contained in Annexure-A1, judgment and amounts to contempt of this Court. Hence this petition to initiate contempt proceeding against the respondent. Cont. Case (C) No.189 of 2013 -: 3 :- 3. The respondent has filed counter affidavit traversing the allegations in the petition. The stand of the respondent in short, is that the learned Standing Counsel for the respondent made the undertaking in this Court at a time when there were two interim orders in force passed by this Court in W.P(C) No.2742 of 2005 restraining the respondent from effecting appointments to the posts (other than Cath Lab Technicians) except through the Employment Exchange, that in view of the said orders the respondent was bound to fill up the posts (other than Cath Lab Technicians) only through the Employment Exchange, that the said Writ Petition was later dismissed as withdrawn and, in the year, 1990 the Government have framed Rules concerning the method of appointment to the various posts of the Kerala Health Research and Welfare Society (for short, “the KHRWS”). It is in the above circumstances that Annexure-A2, appointments were made. According to the respondent, that involves no contempt. 4. The learned counsel for the petitioner has invited my attention to the decision in **Ram Narang (5) v. Ramesh Narang and Another** ([2009] 16 SCC 126) to contend that an undertaking made before a court when it is accepted and Cont. Case (C) No.189 of 2013 -: 4 :- acted upon by the court has the force of an order of the court. Reliance is also placed on the decisions in **Jhareswar Prasad Paul v. Tarak Nath Ganguly** ([2002] 5 SCC 352 - Paragraph 11), **Prithawi Nath Ram v. State of Jharkhand and Others** ([2004] 7 SCC 261 - Paragraph 8) and **Director of Education, Uttaranchal and Others** ## **v. Ved Prakash Joshi and Others** ([2005] 6 SCC 98 - Paragraph 7) to contend that in contempt proceedings it is not open to the contemner to contend that the order which is violated was not legal or proper. The learned counsel submits that appointments made as per Annexure-A2, list is in violation of the undertaking made by the learned Standing Counsel and accepted by this Court as per Annexure-A1, judgment, that amounts to contempt of this Court and hence proceedings are to be initiated against the respondent. 5. The learned Standing Counsel for the respondent has reiterated contentions raised in the counter affidavit of the respondent. It is contended that there was no contumacious conduct or deliberate intention on the part of the respondent to disobey the order of this Court and hence contempt proceeding is Cont. Case (C) No.189 of 2013 -: 5 :- not warranted. It is argued that challenging the appointment as per Annexure-A2, some of the affected parties approached the Lok Ayukta but that complaint was dismissed by that authority. The learned Standing Counsel pointed out that even in Annexure-A1, judgment, right of the petitioner to move this Court if need arises in future and if so advised is reserved. 6. As held in **Ram Narang (5) v. Ramesh Narang and Another** (supra) there could be no doubt that an undertaking made before the court being of a solemn character, when it is accepted and acted upon by the court, has the effect of an order of the said court. Question is whether contempt court proceeding is to be initiated against the respondent? 7. In **Jhareswar Prasad Paul v. Tarak Nath Ganguly, Prithawi Nath Ram v. State of Jharkhand and Others and Director of Education, Uttaranchal and Others v. Ved Prakash Joshi and Others** (supra) it is held that while deciding whether the contemner is guilty or not, it is not open to him to go into the correctness or otherwise of the order said to be violated. If the order is unambiguous whether or not legal, that order has to be complied. 8. There could be no quarrel against the said Cont. Case (C) No.189 of 2013 -: 6 :- proposition. A party cannot be permitted to violate the order claiming that it is not legal. If the order is not legal, his remedy is to challenge it in the appropriate forum. He cannot violate the order so far as it stands. 9. In paragraph 11 of the decision in **Jhareswar Prasad Paul v. Tarak Nath Ganguly** (supra) it is held that the power to initiate contempt proceeding is to be exercised by the courts with care and caution and should be exercised sparingly on being satisfied regarding the true effect of the contemptuous conduct. It should be confined to the question whether there has been any deliberate disobedience of the order of the court and whether conduct of the party who is alleged to have committed disobedience is contumacious. I must consider whether there was any deliberate or contumacious disobeyance of AnnexureA1, judgment. 10. It is revealed from the counter affidavit of the respondent that challenging appointments made by the respondent, W.P(C) No.2742 of 2005 was filed in this Court. In that case, this Court passed interim order on 25.01.2005 as under: Cont. Case (C) No.189 of 2013 -: 7 :- “Admit. Urgent notice. The petitioners submit that overlooking the prescription for appointment viz., by resorting to the invitation of hands from Employment Exchange as well as PSC hands direct appointments are contemplated by the respondents. For a period of one month, there will be an interim stay restraining such appointments”. On 28.09.2005 the said interim order was modified as under: “As per order dated 25.01.2005 this Court stayed direct appointments in the third respondent institution otherwise than through the Employment Exchange or Public Service Commission. Thereafter the order was extended from time to time. Counsel for the third respondent submits that the above order requires modification. I.A.13957/2005 has been filed for the above purpose. Documents produced as Exts.R3(h) and R3(i) go to show that sufficiently qualified candidates are not available for direct appointment through the Employment Exchange for the post of Cath Lab Technicians. Having heard counsel for the petitioner also I think the prayer for modification has to be granted. Accordingly the interim order passed on 25.01.2005 and the interim order passed in IA 10605/2005 and extended thereafter shall stand modified permitting the third Cont. Case (C) No.189 of 2013 -: 8 :- respondent to appoint qualified candidates to the post of Cath Lab Technicians in the third respondent Society by inviting applications by public advertisement .....”. 11. It is to be noted that Annexure-A1, judgment was passed on 17.12.2007 when the above said interim order dated 25.01.2005 modified by order dated 28.09.2005 remained in force. As per the modified order, the respondent could not make appointments otherwise than through the Employment Exchange except to the post of Cath Lab Technicians. The courter affidavit of the respondent states that W.P(C) No.2742 of 2005 was dismissed as withdrawn on 23.02.2010. 12. In other words, at the time the learned Standing Counsel made the undertaking referred to in AnnexureA1, judgment, the interim order (later modified) in W.P(C) No.2742 of 2005 stood in force. Those orders stood revoked only by the said Writ Petition being dismissed as withdrawn on 23.02.2010. The respondent made the representation before this Court as referred to in Annexure-A1, judgment in the light the said interim orders in W.P(C) No.2742 of 2005. 13. I must also notice that the State Government have Cont. Case (C) No.189 of 2013 -: 9 :- prescribed Rules for appointment to various posts to the KHRWS in the year 1990. Rule 9(b) prescribes method of appointment which does not provide for appointment through the Employment Exchange. The learned counsel for the petitioner has drawn my attention to clause (b) of Rule 9 which deals with direct recruitment either by means of an advertisement or other methods as approved by the Governing Body. It is further stated that appointment made in the KHRWS till 05.10.1987 were by direct recruitment and with effect from 05.10.1987, future vacancies be filled through Employment Exchange. But I must notice that the Rules were framed by the State Government in the year, 1990. There is also Annexure-III decision of the Governing Body of the KHRWS held on 10.08.2005 which states that after detailed discussion the Governing Body decided to cancel Circular No.E3-3737/97 dated 01.01.1997 issued by the Managing Director of the KHRWS and the Managing Director was authorized to fill up vacancies provisionally on contract basis as and when vacancies arose. I must notice that even in Annexure-A1, judgment a safety valve is provided for the petitioner if he is aggrieved in future by any conduct of the respondent. Annexure-A1, judgment states that the Writ Petition is closed Cont. Case (C) No.189 of 2013 -: 10 :- without prejudice to the petitioner's right to approach this Court in future if need arises and if so advised. 14. I do not mean to say that the said order enabled the respondent to violate the undertaking and prevented the petitioner from moving a petition for contempt. I have referred to the circumstances under which the learned Standing Counsel made the undertaking on behalf of the respondent in this Court when W.P(C) No.36520 of 2007 came up for hearing on admission. The circumstance under which the learned Standing Counsel made the undertaking ceased to exist when W.P(C) No.2742 of 2005 was dismissed as withdrawn on 23.02.2010. I am not inclined to think, in the facts and circumstances that there was any deliberate or contumacious disobeyance of the order of this Court by the respondent. I must also bear in mind that the purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts. It is not as if whenever there is a noncompliance or even violation of the order, this Court should initiate contempt proceeding. It is appropriate to remember the statement of Sir Lawrence Hugh Jenkins in _**Legal Remembrance v. Motilal Ghose (AIR 1914 Cal. 69)**_ that proceeding for contempt should be initiated with utmost reserve Cont. Case (C) No.189 of 2013 -: 11 :- and that no court in due discharge of its duty can afford to disregard that. It is not enough that there is a technical contempt of court (the above view was approved by the Supreme Court in ## _**Re: P.C.Sen - AIR 1970 SC 1821).**_ 15. Having regard to the above and the law relating to contempt, I am not inclined to think that this Court should initiate contempt proceeding against the respondent as prayed for. But I make it clear that if the petitioner is otherwise aggrieved by Annexure-A2, list, it is open to the petitioner to challenge the same as provided under the law and if the petitioner is entitled to do so. The Contempt Case is dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv