Contempt in premature retirement case: HC rejects application recalling warrants of GAD Secy

By admin On Jun 3, 2017

STATE TIMES NEWS
JAMMU: Justice Alok Aradhe of J&K High Court Jammu Wing rejected the application seeking recalling of bailable warrants of Commissioner/Secretary GAD with regard to contempt in premature retirement case seeking implementation of the judgment.
Justice Alok Aradhe observed that when this Court was about to pass an order directing the concerned Senior Superintendent of Police to file an affidavit whether or not the bailable warrants have been served on Commissioner/Secretary GAD, the Senior AAG submitted that appropriate orders be passed on the application filed by the Commissioner/Secretary GAD for recalling the order dated 22nd May 2017 whereby Court issued bailable warrants in the amount of Rs. 10,000 for securing the presence of Khurshid Ahmed Shah, Commissioner/ Secretary, General Administration Department, Government of Jammu and Kashmir.
Justice Alok Aradhe after hearing both the sides observed that this Court vide order dated 7th April 2017 had directed that in case the respondents are unable to produce any order from the Division Bench, Commissioner/Secretary, General Administration Department, namely Khurshid Ahmed Shah, shall remain present before the Court on 20th April 2017. “However, on 29th April 2017, the matter was adjourned at the request of Seema Shekhar, Senior AAG. Till today neither the respondents have filed compliance report nor have produced copy of any order passed by the Division Bench. In the circumstance aforesaid, this Court is left with no option but to issue bailable warrants in the amount of Rs. 10,000 for securing the presence of Khurshid Ahmed Shah, Commissioner/Secretary, General Administration Department, Government of Jammu and Kashmir on the next date of hearing. Let the warrants be executed through SSP concerned on the aforesaid respondent”, the court has observed adding that the instant application was filed for recalling of order dated 22nd May 2017, inter alia, on the ground that against the order passed by this Court, the respondents have filed Letters Patent Appeal along with an application for stay which is pending consideration before the Division Bench of this court. Senior AAG Seema Shekhar appearing for the Commissioner/Secretary GAD has submitted that in connected appeal, on 18th April 2017, the Division Bench condoned the delay and directed the Registry to diarize the appeal. Thereafter on 28th April 2017, the matter was heard and an order was passed that this matter is part heard before this Bench. The same should be listed on the next date on which the Bench is available.
Justice Alok Aradhe also observed that thereafter by order dated 29th April 2017, the Division Bench directed that the appeals, namely, LPASW Nos. 69/2017, 70/2017, 71/2017, 72/2017 and 73/2017 be tagged and listed along with LPASW No.68/2017. Senior Additional Advocate General has further submitted that initiation of contempt proceedings for non-compliance of the order during the pendency of the appeal and application for stay is not proper and submitted that order dated 22nd May 2017 be recalled and bailable warrants issued against the Commissioner/Secretary GAD be withdrawn and the personal appearance of the Commissioner/Secretary GAD be dispensed with and he be permitted to appear through counsel in the interest of justice.
Upon this, Justice Alok Aradhe observed that it is evident that the Supreme Court has reiterated the rule that mere filing of an appeal along with an application for stay do not absolve the appellant from obeying the order under appeal and any compliance with the order passed by the Single Judge would be subject to the final result of the appeal. Court further observed that from perusal of the aforesaid decision, it is evident that the Division Bench in the aforesaid decision neither took the appeal for admission nor considered the prayer for interlocutory stay.
Justice Alok Aradhe further observed that in the instant case, admittedly the appeal was taken up for hearing by the Division Bench and was marked as ‘Part Heard”. It was open for the respondents to make a prayer before the Division Bench for stay of the order passed by this Court. From the order sheet from the Division Bench, which has been produced by the counsel for Commissioner/Secretary GAD and is taken on record, it is not evident that any such prayer was made before the Division Bench. It is pertinent to note that no reason for non-appearance of the Commissioner/Secretary GAD has been shown before this Court. Besides that, for yet another reason no relief can be granted to the respondent No.2 in the application, namely, MP No.1/2017.
With these observations court rejected the application seeking recalling of warrants as no ground for recalling of the order is made out and further observed that from the perusal of the office note, it is evident that bailable warrants have been issued against Commissioner/Secretary GAD on 25th May 2017. However, there is no office report whether the aforesaid bailable warrants have been received back executed or unexecuted. Consequently, the court directed Registry to submit the report whether or not the bailable warrants have been executed on Commissioner/Secretary GAD.