TMI Blog1978 (1) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... 76) was admitted on 31st August, 1976, and notices were issued to the Bank and to the Administrator. Along with the writ petition an application for stay was also filed. A Division Bench of this Court passed the following ex parte interim order: Issue notice. Operation of the order dated 11-6-1976, communicated to the petitioner under the signature of the officiating Secretary. District Co-operative Bank, Bijnor, and the Resolution of the Committee of Management of the Society concerned shall remain stayed meanwhile. It is, however, made clear that this order does not disable the Administrator from passing fresh orders after obtaining prior approval of the Institutional Board, as contemplated by Regulation 87 of the IT. P. Co-operative Employees Service Regulations 1975. Notice of the writ petition as well as the stay application was served on the Bank and the Administrator. A counter-affidavit was filed on behalf of the Barak and the Administrator with an application dated 6-10-1976 to vacate the interim order dated 31st August, 1979 After hearing counsel for the parties, a Division Bench of this Court passed the following order: Heard learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yet been paid to the petitioner on the alleged misconception on the part of the respondents that only subsistence allowance was required to be paid and not the full salary. The earlier stay order directed the payment of the entire salary and not the subsistence allowance alone and as such the respondents should pay the entire salary due to the petitioner up to date by 16-6-1977 and keep on paying the salary from June 1977 onwards as and when it fell due. It will however be open to the respondents not to take work from the petitioner. The operation of the impugned order terminating the service of the petitioner passed by the Administrator shall remain stayed meanwhile. The aforesaid order was, however, not obeyed and no salary was paid to S. P. Agarwal as directed by this Court, 4. On 10th Feb., 1977 S. P. Agarwal filed Contempt Application No. 23 of 1977 in this Court under S- 12 of the Contempt of Courts Act for taking action against R. R. Upadhya Administrator, and S. N. Tewari, Secretary of the Bank for willful disobedience of the orders of this Court dated 20th October, 1976, passed in Writ petition No. 1379 of 1976. On 31st March, 1977, a learned single Judge of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. We. therefore, proceeded with the hearing of the contempt applications. Since there were a number of inconsistencies in the affidavits, we considered it necessary to examine the contemners in order to give them opportunity to explain these inconsistencies. We, examined ft. S. Upadhya, S, N. Tewari and Aaup singh Bana and P. D. Bishnoi. 7. The facts as stated earlier would show that the order of this Court dated 20th October, 1976. was very clear. it directed the respondents which included the Bank and its Administrator to pay salary to S. P. Agarwal as and when due even if no work was taken from him. The contemners have taken stand that there was some misconception about the implication of the order dated 20th October, 1976, as a result of which they could not pay salary to S. P. Agarwal. In their affidavits as well as in their oral testimony before us the contemners have pleaded that they could not understand the meaning or implication of the expression he shall be paid his salary as and when due occurring in the order of this Court dated 20-10-1976. We have considered the oral statements affidavits and have also perused the original file maintained in the Bank in this mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court has now directed that it will not be mandatory for the bank to take work from the petitioner provided his full salary is paid by the Bank. Now you have an option either to give charge or not to take work from him and pay him his full salary till the writ petition is decided. This letter is on the record of the Bank and the contemners in their testimony before us admitted that the letter was received and they had perused the same. Thus even if the contemners had any misconception about the implications of the order of this Court dated 20th October, 1976, that misconception stood dispelled by the advice tendered by their counsel. The contemners were interested in denying S. P. Agarwal the benefit of this Court's order as would appear from their subsequent conduct. On 1st November, 1976, S. P. Agarwal made an application for the payment of the entire salary and along with that application he submitted a certified copy of the order of this Court. No steps were however taken by R. R. Upadhya or Tewari for the compliance of the order even thereafter. 10. In the ex parte interim order of this Court dated 31st August, 1976, the operation of the order of dismissal dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etary of the Bank passed order that suspension allowance may be paid to S. P. Agarwal as consequent to the stay orders of the High Court he was a suspended employee. This order was contrary to the legal opinion of the District Government Counsel as well as the advice of Sri Vijai Bahuguna, Advocate of this Court. There is thus ample evidence to show that the Administrator and the Secretary both acted contrary to the legal advice given by their counsel and they deliberately withheld payment of salary to S. P. Agarwal in an unjustified manner. 12. The contemners' plea that the stenographer of this Court had wrongly transcribed the order of this Court as a result of which a direction for the payment of salary was included instead of the suspension allowance in the order of this Court dated 20th October, 1976, is without any substance. In their affidavits filed in the contempt petition both the contemners have asserted that the stenographer of this Court wrongly recorded the order of this Court. In their oral testimony before us both the contemners have admitted that none of them was present before the Court when the order dated 20th October, 1977, was passed. They have further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for the same. 14. R. R. Upadhya in his testimony stated before us that on 6th December, 1976, he had complied with the order of this Court dated 20th October. 1976, inasmuch as he had issued orders on that day for the payment of salary to S. P. Agarwal, and after the issue of that order his responsibility ceased in the matter. In our opinion he again perjured. On 20th Nov. 1976, S. P. Agarwal made an application for payment of his salary; on that application the Secretary put up a note to the Administrator that S. P. Agarwal was entitled to suspension allowance only consequent to the orders of the High Court as the position of S. P. Agarwal remained that of a suspended employee. On the note of the Secretary, R. R. Upadhya,. Administrator passed an order Take necessary action as required by High Court's order. This order of the Administrator dated 6th December, 1976, was for the payment of suspension allowance and not for payment of full salary as directed by this Court. In their affidavits R. R. Upadhya and S. N. Tewari both have stated that S. P. Agarwal was not entitled to full salary, instead he was entitled to suspension allowance. Further on 17th April, 1977, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irection contained in the order of this Court dated 19th May, 1977, the contemners had no, justification to disregard that order. A mere filing of the appeal under Article 136 of the Constitution before the Supreme Court against any order of this Court cannot be a justification for disobedience or non-compliance of the orders of this Court. Of course the position would be different if the Supreme Court takes cognizance of the appeal and passes any positive order of stay. There is no dispute that the Supreme Court had not taken cognizance of the appeal filed under Article 136 of the Constitution and no orders had been passed staying the operation of the order of this Court 18. There was no justification for the contemners to deposit the salary in the Supreme Court. There is no opinion in writing by any counsel advising the Bank or the Administrator not to pay salary to S. P. Agarwal or to deposit the same before the Supreme Court along with the memo of appeal filed under Article 136 of the Constitution. The contemners' plea for taking shelter behind legal advice is without any foundation. But even assuming that any such advice was given to the contemners that would not be a v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d another counsel of this Court during the summer vacation when the High Court was closed for making an application or taking some proceedings so that the Bank may not be forced to comply with the orders of this Court. This is clear from their subsequent conduct. 20. In his oral testimony before us S. N. Tewari has stated that as the Secretary of the Bank, he had taken all steps for the payment of the salary but the Administrator did not pass any order for the payment of salary and he could not be held guilty for the disobedience of the orders of this Court. We find no substance in the plea raised by S. N. Tewari. In the first place, he had been appointed as Secretary on the dismissal of S. P. Agarwal. so he was interested in keeping S. P. Agarwal out of the Bank, and for that reason S. P. Agarwal was not allowed to join his duties. Whenever S. P. Agarwal made an application for payment of salary as directed by this Court. S. N. Tewari enclosed a note that S. P. Agarwal was entitled to subsistence allowance even though the District Government Counsel and Sri Bahuguna had clearly advised the Bank and the Administrator to pay full salary of S. P. Agarwal. This would be clear from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d grace the apology is shorn of penitence and hence is liable to be rejected. If apology is offered at a time when the contemner finds that the Court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward. In view of the above observation of the Supreme Court, we think it necessary to consider the question of acceptance of apology. 22. As already noted, the contemners did not comply with the order of this Court dated 20th Oct., 1976, in spite of repeated reminders by S. P. Agarwal. On 10th Feb., 1977, S. P. Agarwal filed contempt application No. 23 of 1977 for punishing the two contemners for the disobedience of the orders of this Court dated 20th Oct., 1976. On 31st March, 1977, notices were issued to the contemners. Notice of the contempt application was served on the contemners but even thereafter they did not care to comply with the order of the Court. As the contemners did not comply with the order of this Court dated 19th May, 1977, another application No. 12389 of 1977 was filed by S. P. Agarwal under Article 215 of the Constitution for taking action against the contemners for the disobedience of the said orders. On 28th July, ..... 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