1. The circumstances which have given rise to the filing of this petition for contempt proceedings against the respondent, may first be surveyed. Raghunath Rai petitioner was removed from Government service on 22nd November 1953. He filed a suit for a declaration to the effect that the order of his removal from service was void and he was entitled to all the emoluments etc. on that basis. The suit was decreed by the trial Court on 5th June 1964. While dismissing the first appeal of the Union of India against the decree of the trial Court, the learned Senior Subordinate Judge, Amritsar held on 10th September 1964, that the order of petitioner's removal from service was illegal and ultra vires Art. 311 of the Constitution and the petitioner was, therefore, deemed to be in the service of the Railway Administration and was entitled to all the benefits and emoluments attached to his post.

2. Against the aforesaid decree of the first appellate Court, the Union of India filed Regular Second Appeal No. 4 of 1965 on 21st December 1964. In an application of the petitioner (C.M No. 1647 C of 1965) for fixing the Regular Second appeal for hearing on some early actual date, I passed the following order on 27th September 1965:

“The only ground on which an early hearing is prayed for by the learned counsel for the respondent is that Righunath Rai, respondent is not being reinstated by the Union of India in spite of a declaration having been granted in his favour by the trial Court on the 5th of June, 1964 and the same having been upheld by the first appellate Court on 10th September 1964. The decree in favour of the respondent declares that the order of termination of his services is illegal and void. The apprehension of the respondent does not appear to be justified. The petitioner is entitled to receive his salary in view of the decree of the Courts below and if this is not paid to him he can approach this Court for necessary action. There is no ground for expediting the hearing of this appeal out of its normal turn and C.M No. 1647-C of 1965 is, therefore, damned without any order as to costs.”

3. The above said order was passed in the presence of counsel for both sides. It appears that the petitioner who was present in Court at that time, took notes of the order and sent a copy of what he thought was the order, to respondent No. 2 with petitioner's letter, dated 17th March 1966. The office of the second respondent (Divisional Superintendent, Northern Railway, Ferozepore) sent letter, dated 11th April 1966 (Annexure ‘C’) in reply to the petitioner's representation, dated 17th March 1966, in the following words:—

“As the appeal filed by the Union of India is pending in the Punjab High Court, the question of payment of any dues does not arise at present”.

4. On 18th April 1966, the present petition under S. 3 of the Contempt of Courts Act, was filed, wherein it was alleged that Shri P. Sahai, General Manager, Northern Railway, and Shri K.L Bery, Divisional Superintendent Northern Railway, Ferozepore, had committed contempt of the Court of Senior Subordinate Judge, Amritsar by flouting the decree of that Court, the operation of which had not been stayed. The petitioner has further complained that the respondents have committed contempt of this Court in ignoring the observations contained in my order, dated September 27, 1965 (quoted in an earlier part of this judgment), in para. 7 of the petition a reference was made to some alleged oral observations made by me at the time of the passing of the order, dated September 27, 1965. The prayer for trying and punishing the above named respondents for the aforesaid alleged contempt was made on that basis.

5. When on November 11, 1966, this petition came up before me for motion hearing, it was pointed out to the learned counsel for the petitioner that their Lordships of the Supreme Court had strongly deprecated the practice of making reference in petitions to the alleged oral observations of Judges during the hearing of cases. Mr. M.R Sharma, Advocate for the petitioner asked for an opportunity to amend the petition so as to delete the said reference. The prayer for leave to amend the petition was allowed by me. The petition against the General Manager (respondent No. 1) was dismissed in limine, but notice was directed by me to issue to respondent No. 2. In his written statement, dated December 14, 1966, respondent No. 2 pointed out that a copy of my order, dated September 27, 1965, sent to him by the petitioner was different from the order which exists on the file. On the merits of the controversy, respondent No. 2 has Bworn, inter alia, as follows:

“6. There were no directions by the Hon'ble Judge that anything should be paid. In fact, no such directions could be given as the decree was merely declaratory, The rest of the paragraph is admitted.

‘7 ***

The decree was only declaratory and was not even executable. There was no mandamus about payment by any Court. The appeal against the decree was pending in this Hon'ble Court and even if this decree is eventually affirmed, the only right of the petitioner is to the salary that may be legally due. There is no contempt of Court either in fact or according to law. The respondent bolds this Hon'ble Court in the highest esteem and respect and could not even think of, much less intend, committing any contempt of Court.

Moreover, the action of the respondent was bona fide. On receiving the communication of the petitioner, he took legal advice and referred the matter to the Law Officer, Northern Railway, New Delhi, who informed him by his letter, dated April 1, 1966 that “as the appeal filed by the Union of India is pending in the High Court, the question of payment of any dues does not arise at present. The party may please be advised accordingly, which was done.”

6. The dismissal of this petition was prayed for by respondent No. 2 an the above-said grounds. On January 6, 1967, when the matter came up for hearing, it was pointed out by the learned counsel for the respondents that the copy of my order, dated September 27, 1965, furnished to the Divisional Superintendent was in fact not a correct one. The petitioner conceded this. Thereupon, it was directed that the petitioner should file an affidavit explaining the discrepancy and as to how he managed to send an incorrect copy of the Court's order. He has since filed his affidavit, dated February 2, 1967, wherein he has averred that though a certified copy of the order, dated September 27, 1965, was sent to the General Manager, and advance uncertified copy was sent to the Divisional Superintendent wherein the mistake in question crept in on account of a typographical error, that the mistake was not intentional and that the petitioner tendered an unqualified apology for having committed this error. There is no doubt that the mistake could not have been committed by the petitioner deliberately as the mistaken version of the order is against the interest of the petitioner. The mistake appears to have occurred in the petitioner taking notes of the order when it was being dictated in the open Court. In the circumstances of the case I accept the apology of the petitioner and do not consider it necessary or expendient to take any further action against him in this matter.

7. In the main case it was urged by Shri Partap Singh, the learned counsel for the respondent that not taking action on a declaratory decree pending an appeal against the same did not amount to disregarding or disobeying the decree and that no question of obtaining stay of operation of the said decree could arise as the decree was merely declaratory and did not require any action to be taken by the respondents. It was also pointed out that respondent No. 2 was not a party to the decree in his personal capacity or even in his official capacity.

8. Mr. M.R Sharma, the learned counsel for the petitioner referred to the meaning of the phrase “contempt of Court” as given in Corpus Juris Secundum, Volume 17, page 1, and argued that the said expression does not only signify wilful disregard or disobedience of the Court's order but also such other conduct as may tend to bring the authority of the Court and the administration of law into disrepute or in some manner to impede the due administration of justice. Mr. Sharma laid great stress on the fact that even mere disregard of a Court's order amounts to contempt, though there may be no wilful disobedience of the same. No exception can be taken to the general law to the above effect. The supervening consideration on which the law of contempt of Court is based is that no Tribunal can function properly unless it has power to maintain its dignity and to enforce discipline and respect in its administration of justice. Whether in a particular case contempt has been committed or not, hae to be decided in the light of the circumstances of each case. While zealously safeguarding the dignity of the Court, it has also to be borne in mind that it is of equal importance that contempt proceedings should not be abused and that utmost care must be taken to avoid resort to such proceedings in cases where such action is not appropriate. Though disregard of a Court's order may by itself amount to contempt even in the absence of evidence of disobedience, it would still be: necessary, in my opinion, to prove, in most casesf that even the disregard was wilful and not bona fide.

9. Counsel then referred to the judgment of the Judicial Committee in Eastern Trust Co. v. Ma Kenzie Mann & Co. Ltd., AIR 1915 PC 106 (2). In that case it was held that it is the duty of the Crown and of every branch of the Executive to abide by and obey the law, and that if there is any difficulty in ascertaining it, the Courts are open to the Crown to sue, and it is the duty of the Executive in cases of doubt to ascertain the law, in order to obey it, and not to disregard it. The complaint in that case related to an allegation of the Government having received certain moneys which it had been restrained by an injunction of the Court from receiving.

10. Mr. Sharma next referred to the judgment of a learned Single Judge of the Allahabad High Court in Ram Babu Rathaur v. Divisional Manager, Life Insurance Corporation of India, AIR 1961 All 502 wherein it was held in connection with the objection as to the issue of a writ of mandamus for directing reinstatement into service and the suggestion of issuing a writ in the nature of certiorari setting aside the order of the Life Insurance Corporation of India dismissing Ram Babu Rathaur from service), as follows:—

“Therefore, if because of the provisions of S. 21(b) of the Specific Relief Act it is not possible to order the-reinstatement of an employee or to specifically enforce the contract of employment, it is not possible to achieve, the same result by the expedient of quashing the order of dismissal and thus force the employer to reinstate the petitioner under threat of proceedings for contempt of Court if effect is not given to the order of this Court by the employer. Secondly, this court will assume that the orders passed by it will be obeyed in substance whatever be the form of the order. The logical result of quashing the order of dismissal would be that the petitioner should be reinstated to his office by the respondent in the case, of R. v. Speyer, 1916-1 KB 595, it was observed as follows:

‘This is the King's Court; we sit here to administer justice and to interpret the laws of the realm is the King's name. It is respectful and proper to assume that once the law is declared by a competent judicial authority it will be followed by the Crown.’

‘In the case of Manick Chand Mahata v. Corporation of Calcutta, ILR 48 Cal 916 : (AIR 1921 Cal 159) the same view was taken. On the basis of these authorities it can quite reasonably be assumed that once this Court declares the dismissal of the petitioner to be illegal and quashes that order by means of a writ of certiorari, the respondents will not try to avoid that order on the pretext that it is only a certiorari and not a mandamus and inasmuch as the Court has not said expressly that the petitioner be restored back to his office until legal and proper proceedings are taken against him, they would be free to ignore the writ of certiorari and keep the petitioner out of office and take no action to comply with the orders of the Court’.

To my mind, therefore, it will make no difference whether the order is quashed by means of a writ of certiorari and a declaration is given that the petitioner's dismissal is illegal or a writ of mandamus be issued commanding the respondents to treat the petitioner as in service. The practical effect of the two writs would be the same and by issuing a writs of certiorari it would again be a case of doing indirectly what the law prohibits from being done directly.”

11. From the above-quoted observations of the Allahabad High Court, Mr. Sharma seeks to derive support for the propositition that the form in which the judgment of the Court is pronounced, is wholly immaterial and that whether the decree is merely declaratory or is executable, makes no difference so far as the question of determination is whether a respondent in a contempt case has deliberately disregarded the order in question or not. Learned counsel emphasises the fact that respondent No. 2 has even after receiving notice of the contempt petition, refused to implement the decree of the Court of the Senior Subordinate Judge on the solitary ground that he has been advised that it is not necessary to do so. The counsel submits that wrong legal advice is no defence to a charge for contempt though it may in suitable cases amount to an extenuating circumstance.

12. The next case dealing with the general proposition to which reference was made by Mr. Sharma is the judgment of Supreme Court in State Of Bihar v. Rani Sonabati Kumari, AIR 1961 SC 221. That case also related to an alleged disobedience of an injunction issued by the Court. In that connection their Lordship of the Supreme Court observed as below:—

“Before concluding, we consider it proper to draw attention to one aspect of the case. It is of the essence of the rule of law that every authority within the State including the Executing Government should consider itself bound by and obey the Law. It is fundamental to the system of polity that India has adopted and which is embodied in the Constitution that the Courts of the land are vested with the powers of interpreting the law and at applying it to the facts of the cases which are property brought before them. If any party to the proceedings considers that any Court has committed any error, in the understanding of the law or in its application, resort must be had to such review or appeals as the law provides. When once an order has been passed which the Court has jurisdiction to pass, it is the fluty of all persons bound by it to obey the order so long as it stands, and it would tend to the subversion of orderly administration and Civil Government, if parties could disobey orders with impunity. If such is the position as regard private parties, the duty to obey is all the more imperative in the case of Governmental authorities, otherwise there would be a conflict between one branch of the State polity, viz. the executive and another branch the Judicial. If disobedience could go unchecked, it would result in orders of Courts censing to have any moaning and judicial power itself becoming a mockery. When the State Government obeys a law, or gives effect to an order of a Court passed against it, it is not doing anything which detracts from its dignity, but rather, invests the law and the Courts within the dignity which are their due, which enhances the prestige of the executive Government itself, in a democratic set up. We consider that on the facts of this case there was no justification, legal or otherwise for the State Government to have rushed the notification under S. 3(1), when its application to modify or vacate the order for interim injunction was pending belora the Subordinate Court. But more than that when possibly by failure to appreciate their error, the notification had been published, and the propriety and legality of its action was brought up before the Court by an application under Order 39, Rule 2(3) the attitude taken up by the State Government and persisted in up to hearing before us, has been one which we can hardly commend. If the Government had deliberately intended to disobey the order of the Court, because for any reason they considered it wrong, their conduct deserves the severest condemnation. If on the other hand, it was merely a case of inadvertence and arose out of error, nothing would have been lost and there was everything to be gained, even in the matter of the prestige of the Government, by a frank avowal of the error committed by them and an expression of regret for the lapse, and it is lamentable that even at the stage of the hearing before us, there was no trace of any such attitude.”

13. On the basis of the above-quoted pronouncement of the Supreme Court, it is sought to be argued on behalf of the petitioner that a heavier duty lies on the Government authorities to have full regard for the judgment and orders of the Court and that once an order has been passed which the Court passing it has jurisdiction to make, it is the duty of all persons bound by the order to obey the same so long as it stands. Counsel argued that the conduct of respondent No. 2 in regard to the decree of the Senior Subordinate Judge tends to subvert the orderly administration of law. Referring to the provisions of R. 5 of O. 41 of the Civil P.C, Mr. Sharma emphasised that the filing of second appeal against the decree of the first appellate Court did not by itself operate as stay of the proceedings under the decree or stay of its operation. The counsel contended that admittedly no application for stay of operation of the decree had been made and no stay order was granted till the alleged contempt was committed. The decree of the lower appellate Court being, therefore, in full force and the request of the petitioner to implement it having been wantonly refused by the second respondent, it is argued that there can be no clearer case of deliberate disregard of a Court's binding judgment and that this conduct of respondent, No. 2 amouats to the grossest contempt of that Court.

14. Mr. Sharma next referred to the Division Bench judgment of this Court (Falshaw, C.J and Tek Chand, J.), D/- 8-3-1963 in L.G Danerum v. State of Delhi, L.P.A No. 90. D of 1961. The Letters Patent Appeal had been filed against the judgment of a learned Single Judge accepting an appeal of the Union of India and dismissing the declaratory suit of L.G Danerum, against his dismissal from service on various grounds. The learned Single Judge had accepted the preliminary objection raised before him by the Government to the effect that a suit was not maintainable under S. 42 of the Specific Relief Act as the plaintiff had claimed a declaration simpliciter and had not sued for arrears of salary. This contention had been turned down by the lower Court, but was accepted by the Single Judge. Dealing with the attack on the slid finding of the learned Single Judge, the Letters Patant Bench observed as follows:

“In my opinion the lower Courts were right and the learned Single Judge was wrong on this point. In my opinion if a Government servant sues for a declaration that the termination of his services suffers from such grave defects as to be of no effect, and consequently that he is to be treated as having been in service throughout, it is not necessary for him to sue for pay since if he succeeds with his declaration the other consequences will automatically follow.”

15. Mr. Sharma submitted that the last sentence in the above quoted passage from the judgment of the Division Bench clearly showed that it was not necessary for the petitioner to sue for a money decree since on his success in the declaratory suit “the other consequences will automatically follow.” The other consequences, which according to Mr. Sharma must follow the declaratory decree, include his reinstatement and in any case the payment of the emoluments due to him as a result of the decree declaring him to be in service.

16. The judgment of S.B Capoor, J. D/- 10-12-1957 in Criminal Original No. 17 of 1957 (Punj), Ram Niwas Aggarwal, Secy., Market Committee, Jaitu v. Bhagwan Dass—relied upon by Mr. Sharma need not detain me as it has been rightly pointed out by Shri Pratap Singh, Railway Advocate that the said judgment was reversed by G.D Khosla, C.J and Dulat, J. in Letters Patent Appeal No. 246 of 1957 (Punj). Refusal of the respondents to reinstate the petitioner on the basis of a judgment pronounced by the High Court in a writ petition was held by Capoor, J. in that case to amount to gross contempt of Court. The Letters Patent Bench, however, held that the most that could be said was that the respondents did not wish to reinstate the petitioner immediately and had sought the advice of the counsel as to how best they could proceed with the enquiry which had been quashed and then dispense with the petitioner's services, and that this could not be said to amount to deliberate disobedience of the orders of a High Court in the writ petition or even to an evasion of the said orders. On that basis it was held by the Division Bench that the employers had not committed any contempt and they had acted bona fide.

17. The last case to which reference has been made by the counsel is the judgmant of Grover, J., D/- 26-3-1964 in Dhanji Ram Sharma v. G.P Bhalla, Criminal Original 10-D of 1964 (Punj). That case was not exactly similar, but some of its facets were common with the case in hand. I do not think it is possible to derive much assistance from the said judgment which appears to have been pronounced on the peculiar facts of that case. It was, however, held by the learned Judge that the petitioner in that case had not been reinstated due to sheer inadvertence and mistake and not on account of any attempt or intention on the part of the Railway Authorities to disobey or disregard the orders of the Court. This Court was satisfied from the affidavit filed in that case that no contempt had been committed.

18. I had directed the learned counsel for the Railway Administration to obtain definite instructions on the point whether they were still adamant on their stand or if they were willing to pay the petitioner the emoluments due to him in accordance with the declaratory decree. In the meantime, the Railway Administration obtained stay of the operation of the declaratory decree from this Court. Though the stay order has subsequently been vacated, the petitioner has expressly stated at the time of the vacation of the ex parte stay order that he would not insist on his right under the decree till the hearing of the Regular Second Appeal, which has been fixed for some actual date. The only question that has therefore, to be decided is whether the refusal to pay the emoluments of the petitioner on being asked for the same, amounted to deliberate disregard of the decree of the lower appellate Court. Though the counsel for the petitioner has vehemently argued that the respondent has also committed contempt of this Court in disregarding the observations contained in my order, dated September 27, 1965, I do not consider any force whatsoever in that contention. The observations made by me in the said order to the effect that the petitioner, was entitled to his salary in accordance with the declaratory decree and that he could approach this Court for necessary action, if it was not paid to him, could not be treated as an order to the Government to pay his salary, and does not by itself add to the force of the declaratory decree already granted by the Senior Subordinate Judge.

19. Mr. Partap Singh has referred to the judgments is Kamta Prasad Srivastava v. Dr. P.L Srivastava, ILR (1950) All 333, A. Rarnalingam v. V.V Mahalinga Nadar. AIR 1966 Mad 21 and Dalal Chandra Bhar v. Sukumar Bmerjee, AIR 1958 Cal 474 and has argued that a party is not guilty of contempt of Court in ignoring S. declaratory order of the Court unless he is bound by or named in the order or the process of the Court requires him to act in accordance with it. It was no doubt so held in the Allahabad case. The Division Bench of the Calcutta High Court (P. Chakravastti, C.J and S.C Lahiri J.) held in Dulal Chandra Bhar's case, AIR 1958 Cal 474 that if contempt is sought to be founded on a breach of a mandatory order, the same cannot be done unless it is shown that the mandatory order directed the alleged contemner to do a particular thing by a particular date or on a particular day and that he had not carried out the direction. Inasmuch as respondent No. 2 was not a party to the decree, and no prosess was ever issued to him by any Court to do any particular thing, and the decree itself was not executable, but merely declaratory and the fact that an appeal against the decree was pending in this Court and it was only on the legal advice received by the Divisional Superintendent from the experienced Law Officer of the Railway Administration, that he did not immediately direct payment of the salary of the petitioner, it is impossible to hold that respondent No. 2 is guilty of wilful disregard of the decree of the lower appellate Court declaring the dismissal of the petitioner from service to be wrongful or unconstitutional. No question of disobedience of the decree can arise in this case as the said decree does not call upon the Union of India to do any particular thing. There is no doubt that neither the respondent not anyone else concerned in the matter can refuse to abide by the said decree or disregard it. Though I am in substantial agreement with the general propositions of law laid down by the Allahabad High Court in Ram Babu Rathaur's case. AIR 1961 All 502 (Supra), I do not think it either possible or advisable to extend that analogy to the extent of enabling suitors to substitute contempt proceedings for execution proceedings. I think that contempt proceedings cannot be used as a lever for obtaining speedy execution of even executable decrees instead of resorting to the normal procedure prescribed by law for executing such decrees. Indeed there does not appear to be any process available in law to execute a mere declaratory decree. Nor can mere delay in implementing a decree be deemed in all cases to amount to a contemptuous disregard of the decree. In Rani Sonabati Kumari's case. AIR 1961 SC 221, (Supra), the Supreme Court was concerned with the violation of an injunction. But some of the observations of their Lordships do indicate that wilful disregard of a declaratory decree may in some cases amount to contempt of the Court which passed that decree. Though I cannot congratulate him for the somewhat stubborn attitude adopted by him in his return to the rule issued in this case, I have not been able to persuade myself to hold respondent No. 2 guilty of contempt of Court, in the peculiar circumstances of this case. The rule is accordingly discharged, but no order is made as to costs.

AGI/DVC

20. Rule discharged.