Insurance Co Ltd.& Anr. vs Union of India & Anr.

Shah, J.—This Letters Patent Appeal is directed against the judgment and order passed by the learned Single Judge of this court on April

21, 1988, in contempt petition No. 79/1988. On the point in controversy raised in the present LPA it is not necessary to burden this order by

detailing the entire history and the facts of the case as the main writ petition No. 81/1987, out of which the present proceedings were initiated, is

disposed of by the order of the Division Bench passed on June 9, 1988. Pursuant to the pendency of the said writ petition the respondent No. 2

herein by his application dated April. 29, 1988, prayed for initiating proceedings of contempt against the present appellant on the plea that despite

directions by the Division Bench in CMP 151/1987 issued on February 3, 1987, that the petitioners shall not be posted under any of his juniors

while he remains at Srinagar, the respondent placed the respondent No. 2 under the Administrative Control of his alleged Junior Shn S.K. Dhar,

appellant No. 2, so this LPA. The said CMP was moved alongwith the writ petition No. 81/1987. While the said application was placed before

the learned Single Judge, he was pleased to pass the impugned order issuing notice to the appellants calling upon them to show cause why the

contempt proceedings be not initiated against them. It is further directed that meanwhile keeping in view the order of the court dated February 3,

1987, passed in CMP No. 158/1987, the appellant No. 2 who was respondent No. 3 in the main application shall not exercise his administrative

control over the respondent No. 2. After notice to the respondents the appeal was taken up for hearing and the counsel for the respective parties

were heard at length. It is forcefully urged by the learned counsel for the appellants that the order impugned suffers from the defect of jurisdiction

as the interim type of directions restraining appellant No. 2 to exercise administrative control over the respondent No. 2 was neither part of the

prayer in the application, nor could have been issued by the learned Single Judge. As on facts at his own violition the respondent 2 already worked

at Jammu under the administrative control of appellant No. 2 who is two grade higher in rank to the respondent No. 2 and cannot be debarred to

exercise administrative control over his subordinates especially the respondent No. 2, who also suppressed the fact of showing that he had already

worked under him. Without any resistence and thus the order impugned is liable to be set aside, as no case of even issuing contempt is made out

from the facts on record in the main writ petition, which have not been highlighted by the respondent 2 in his application.

Learned counsel for the respondent 2, on the contrary, submitted that the order impugned is passed by the learned Single Judge to implement

the order passed by the Division Bench in CMP 158/1987 on February 3, 1987, and cannot either be said to be an excess of jurisdiction

conferred on the learned Single Judge or amounts to judgment in any manner, requiring interference in clause XII of the Letters Patent Rules of this

High Court. Ordinarily against the issuance of a show cause notice on a petition for contempt, we would not have entertained the LPA in Clause

XII of the Letters Patent, but for the exparte interim directions forming part of the impugned order to the following effect :

In the meanwhile, keeping in view the order of this court dated 3.2.1987 passed on CMP No. 158/1987, the / respondent No. 3 shall not

exercise his administrative control over the petitioner.

As the said direction falls within the ambit of the judgment within the meaning of Clause XII of the Letters Patent, as the jurisdiction of the learned

Single Judge is challenged on that count, to pass an order of the nature affecting the rights of the appellants, can successfully be assailed in the

Letters Patent Appeal for which we do not find any bar in Clause 12 of the Letters Patent of this court. The objections of the learned counsel for

the respondent No. 2 is, therefore, over ruled and rejected.

We would not like to enter into the merits of the case because the order impugned passed by the learned Single Judge, primafacie, appears to

be without jurisdiction, firstly, because the order sought to be implemented passed by the Division Bench on 3.2.1987 does not fall within the

ambit of any of the clauses of Rule 14 of the J&K High Court Rules, 1975. Proceedings for initiating contempt arising out of the writ petitions do

not fall in any of the clauses 1 to 10 of Rule 14 (supra) to be taken cognizance of by the learned Single Judge as till the time when the impugned

order came to be passed the writ petition No. 81/1987 was pending admission before the Division Bench of this court which ultimately came to be

disposed of on June 9, 1988. As such, we find that on the date when the impugned order was passed the learned Single Judge had no jurisdiction

to entertain the contempt petition or to pass any order much less the order impugned directing the appellant not to exercise administrative control

over the respondent 2.

Even on merits by putting such a rider without specifying as to under whose administrative control the respondent No: 2 shall function during the

pendency of the contempt petition, permits respondent No : 2 to work uncontrolled having no administrative control over him, as apparently an

officer two ranks higher than the respondent No : 2 should not have been restrained in the manner in which he has been restrained under the

impugned order. Morever, from the perusal of the record it also transpries that during the pendency of the LPA the main writ petition .stood

disposed of and the Division Bench by its order July 4, 1988, observed in presence of"" the counsel for both the parties that the writ petition No:

81/1987 has been disposed of by the Division Bench and this contempt petition has become redundant. However, since the initial jurisdiction of

entertaining such contempt petition by learned Single Judge of this court in the light of the provisions of Rule 14 of the J&K High court Rules, 1975

is significantly invoked and the learned Single Judge travelled beyond the scope of prayer made in the petition, the order impugned suffers from the

defect of inherent jurisdiction. We, therefore, find that the order under appeal deserves to be set aside.

In the result the LPA is allowed. The order passed on April 21, 1988 by the learned Single Judge of this court, is hereby set aside.

Parties are, however, left to bear their own costs.

The findings herein, however, shall not be deemed to have any bearing or expression of our opinion regarding the seniority of the respondent 2

visavis the petitioner, which is pending adjudication in some other writ petition.

Record be sent back.