LPA/248/2022 of MANAGING DIRECTOR, SICOP Vs ABDUL RAZAK SOFI AND ORS. (PUBLIC WORKS DEPARTMENT) on 30 December 2022

JUDGMENT

01. This intra-court appeal is directed against the interim order dated 26.09.22 passed in C.C.P (S) No.362/2020 titled Abdul Razaq Sofi Vs State of J&K & others, whereby, Learned Single Judge has directed the SICOP (appellant) to deposit an amount of Rs.11,54,154/- with interest @ 18 % in the Registry of this Court, failing which, Managing Director of the appellant Corporation shall appear in person on the next date of hearing.

02. Impugned interim order has been challenged by the appellant inter-alia on the ground that no such direction as is contained in the impugned order dated 26.09.2022 could have been passed against the appellant when the appellant was neither a party in SWP No.1895/2011 disposed of by the Writ Court vide its judgement dated 14.12.2017 nor the appellant was a party in the Contempt petition which was filed in the year 2020. It is submitted that the Managing Director, SICOP was arrayed as party respondent no.5 in the contempt petition vide order dated 29.06.2022 that too by designation alone.

03. Learned counsel for the appellant , Mr.F.A.Bhat, argues that unless there is judgment passed against the appellant with some direction issued to be complied with, no proceedings for committing the contempt of this court can be initiated against such person. Referring to the judgement passed by writ court dated 14.12.2017, Mr.F.A.Bhat, submits that writ petition was directed only against the State through Public Works Department, Commissioner Secretary, Finance and Planning and Director Rural Development, Kashmir and consequently , the writ court judgemnt also came to be passed against the aforesaid respondents. Since the SICOP was not a party respondent, as such, there is no direction issued to SICOP either to release the salary of the respondent ( writ petitioner ) or other post retiral benefits.

04. Per contra, Mr. Majid Bashir, learned counsel appearing for respondents submits that the appeal under clause 12 of the Letters Patent, is not maintainable against the interim orde, that too, when it was passed by the Single Bench in exercise of Contempt jurisdiction. He further submits that SICOP came to be impleaded party respondent No.5 in the contempt petition and direction issued to it in the context of stand taken by other respondents that the amount of Rs. 11,54,154/- from the retiral benefits of the respondent no.1 was paid to the SICOP erroneously and that the aforesaid sum has not been returned by the SICOP.

05. Having heard learned counsel for the parties and perused the material on record, we are of the view that the proceedings for contempt do not lie against the person who was neither a party in the writ petition nor there is any specific

direction issued by the writ court to such party. Indisputably, SICOP was not arrayed as one of the parties in SWP NO.1895/2011 nor any relief was claimed against it. From reading of the judgmeent of the writ court dated 14.12.2017, it is abundantly clear that the writ court has not issued any direction to SICOP to either release the salary of the respondent no.1 ( writ petitioner ) or to pay him post retiral benefits. In that view of the matter, we have no doubt in our mind that, no proceedings for committing contempt of the court can be initiated against the appellant in absence of any specific allegation against SICOP for deliberate or willful non compliance of the direction issued by the court. May be, it is true, that sum of Rs. 11,54,154/-. has been transferred by the Executive Engineer, Rural Engineering Wing Budgam, to the C.C.Account of SICOP maintained in the J&K Bank, Karan Nagar, Srinagar, but that does not render the appellant Corporation liable to be proceeded for committing contempt of the Court in absence of the proof that the SICOP has either violated the judgment of the writ court or has acted in a manner to frustrate its compliance. The department of Rural Development may be well within its right to receive back the aforesaid amount transferred to SICOP , if it is permissible in law, but this cannot render SICOP liable to be proceeded for contempt of the Court unless a willful disobedience of the court is demonstrated.

06. In so far as the objection of Mr. Mir Majid Bashir, learned counsel for the respondent to the maintainability of this appeal is concerned, suffice to say that interim order impugned in this appeal apparently passed by the Single Bench is apparently way beyond the directions issued by the writ court. The direction to the appellant Corporation to deposit the amount Rs. 11,54,154/- in the Registry of this Court to be ultimately disbursed to respondent no.1, is a fresh direction having trapping of a final order and is not derivable from the judgemnt of the writ court and therefore, “judgement” within the meaning of Clause 12 of the Letters Patent. We, therefore, hold this appeal maintainable.

07. For the foregoing reasons, this appeal is allowed and the impugned order dated 26.09.22 in so far as it directs the Managing Director SICOP to deposit an amount of Rs11,54,154/- in the Registry of this Court or else to appear in person on the next date of hearing, is set aside being a direction beyond the scope of the judgement passed by the writ court. Learned Single Judge, however, shall proceed in the matter against other respondents for committing contempt of the court, if the judgemnt passed by the writ court is not complied with. It shall also remain open to other respondents to get back the amount deposited in the Account of Managing Director , SICOP, if the same is erroneously deposited and is required to be reimbursed to the department of Rural Development under law.

08. The appeal is disposed of in the aforesaid terms.

( M.A. CHOWDHARY ) ( SANJEEV KUMAR ) JUDGE JUDGE

Srinagar 12.2022 “Nuzhat,Jt.Reg./Secy.

Whether the order is speaking :Yes

Whether the order is reportable : Yes