Civil Appeal No 2031 of 1979
Appeal by Special Leave from the Judgment and Order dated 20 1 79 of the Rajasthan High Court Jaipur Bench at Jaipur in SB Revision No 11276
Soli J Sorabjee Solicitor General Subhodh Markendya and Girish Chandra for the Appellants
Balakrishna Gaur for the Respondent
The Judgment of the Court was delivered by KRISHNA IYER J
An odd case of sentence of three months  civil imprisonment and attachment of assets of the Central Government and two of its officers for default in instant reinstatement of a Railway Inspector removed from service for misconduct occasions this appeal by special leave
300 The Court System is neither a cloistered virtue nor a self righteous process and readily re examines in its appellate crucible the judgments rendered at lesser levels even if the subject matter be as here alleged disobedience of a judicial order
Justice is not hubristic and truth triumphs by self criticism
And so this Court in keeping with such an invigilative perspective must review the punitive directive of the trial court affirmed upto the High Court but challenged before us that the Union of India and its officers in the Railway Department the appellants do suffer distraint of property and imprisonment of person for the contempt of its authority by non compliance with its order of injunction
This case disturbs us somewhat and constrains us to go to the basics in a certain branch of the jurisprudence of contempt of court
As will presently appear the synthesis of two seemingly antithetical creeds both vital to our Republic is the key to the crucial issue projected by this appeal where disobedience of a mandatory injunction to retain in service pendente lite the respondent a railway inspector regardless of the disciplinary proceedings which had by then allegedly culminated in his exist from service
The court shall neither be imperious nor be obsequious
The law in the area of contempt of court must avoid the extremes of hyper reactivity to marginal indifference to judicial authority out of pragmatic difficulties and of hypo respect for court commands in a cavalier spirit of the court has no guns
Why care   The fluid yet valid concept of contempt of court  keeps judges under the rule of law for personal liberty under our constitutional order is protected by a processual armour even if its deprivation be the product of the judicial process
This caveat is called for in the present case where we are confronted by a bizarre order of contingent imprisonment of unspecified servants and coercive attachment of un particularised properties of the Union of India
And yet this order has survived two appeals before arriving here by special leave
The facts are few and the law is not abstruse yet in our view the order under appeal is an overzealous command with fatal failings writ on its face
The respondent an Inspector in the Western Railway was proceeded against for misconduct
He did not show up when the show cause  notice was issued and when the disciplinary steps proceeded further he artfully rushed to the munsif s court by passing the departmental process and sued for a declaration of immunity and permanent injunction against further governmental action
Inevitably he moved for an ad interim injunction to restrain the Railways from affecting his position in service by continuing the disciplinary enquiry and to continue to pay his full salary
After hearing both sides the court 301 issued on April 15 1974 such an injunction or freeze order which was appealed against in vain and eventually the revision to the High Court also proved fruitless
The blanket order which was sustained reads thus I therefore order and direct the NA Union of India and its employees not to implement or otherwise put in effect the order of dismissal at 18 1 74 or any other one removing terminating or dismissing the services of the applicant as IOW Of Western Railways and direct further that the applicant shall be retained and continued on post power pay privileges and perquisites attached to the post of Inspector of Works W Rly and in the same manner as if no orders of removal or any other one were passed
In other words he shall be placed in the position as he held it on 14 1 1974 in the matter of pay power privileges and all other perquisites that he availed and enjoyed on 14 1 1974 and immediately before
The appellants hopefully but harmfully as events proved awaited the decision in the higher courts before implementing the direction for reinstatement
But even while the case of injunction was pending in the District Court in appeal an application under 039 R23 or disobedience was filed on 15 7 1974
The trial judge held the appellants guilty and passed a nebulous sentence against nameless culprits on January 5 1976 in these terms
It is also clear that the non applicants according to the decision of this court dated 15 4 74 have not continued payment of the wages and other allowances and therefore it fully proved that the non applicants have not carried out the order dated 15 4 74 of this court
Now the non applicants are hereby further ordered that if they fail to comply with the order dated 15474 within 15 days the opposite party shall be visited with the order of attachment of property and sending them to civil jail
As the non applicant No 2 has been transferred from Kota Division therefore the compliance of the order will be made by the present Divisional Superintendent Kota
Translation furnished in court by the learned Solicitor General An unsuccessful appeal and an unrewarding revision ensued
The High Court hortatively told the Union of India that the law is the King of Kings and admonished in high sounding style 302 that the state functionaries should atleast after 28 years of the functioning of the Constitution and rule of law in this country realise understand and literally and faithfully implement the judicial pronouncement by showing respect to law All the officers the citizens in general the litigants and the State functionaries in all seriousness should keep the following internal saying of the great jurist Maharshi Manu as uppermost in our mind ie Law is the King of Kings far more rigid and powerful than they there is nothing higher than law and by its powers the weak shall prevail over the strong and justice shall triumph 
I wish this should not only be exhibited as the guide lines in all Government offices important public institutions street corners and road corners but acts upon both in letter and spirit by all irrespective of the office profession status and assignment which one holds in life
We agree but wish to add that the Manu text be exhibited also in courts halls together with Cromwell s famous statement which the great Judge learned Hand wanted should be hung on legislative and court halls l beseech you in the bowels of Christ think it possible that you might be mistaken   If we scan the anatomy of the Munsif s order which was upheld all along we notice awesome implications that if within 15 days compliance with the injunction did not take place which implied payment of long years  salaries and re induction into service of the respondent who had by then been removed all of which required much more time to secure sanctions and drawls of moneys in a mammoth hierarchical machine the opposite parties who among them  shall be visits with the order of attachment of property which  and sending them whom  to civil jail for how long 
As the non applicant No 2 has been transferred from Kota Division therefore the compliance of the order will be made by the present Divisional Superintendent Kota and so the transferee officer was in peril of imprisonment 
The bracketed interrogations are ours briefly to indicate that where liberty and property are to be deprived it is fundamental that vagueness is a fatal vice even if the issuing authority be the court
The infirmity was corrected in small part by the High Court in revision as will presently notice Anyway this order was stayed by the High Court on 5 3 1976 until it finally dismissed the revision on January 20 1979
And it is the appellant s case that salaries thereafter have been paid calculations have been made sanctions obtained and money withdrawn and all the 303 dues of years are ready to be distributed
The question is whether the action for disobedience was legal and justified and in any case the draconian punishment of Government by attaching its properties and putting its servants in jail was a desertion of judicial discretion whole hall mark is to be firm but not authoritarian liberal but not petulant
and ever informed by realism and impressed with contrition
We have here an interlocutory injunction though unusual whose soundness is being tested in a separate proceeding in this Court
Let use pro tempore assume its valid existence and focus on the folk up of alleged breach and visitation of punishment
What was the direction  Could it be practical to comply within that time having due regard to the inertia of administrative processes  Was there recusant refusal and if so by whom in the conspectus of facts here When does the court go to the extreme of imprisonment of Government servants at lesser levels who have to act on orders from above for disobedience Is it the path of judicial discretion to temper justice with mercy or practise the opposite  Above all
though arising in limine can there be an order of contingent attachment of unspecified properties  Can the court imprison any one unidentified in the order by making an omnibus direction leaving the life giving parts blanks to be filled up long after the judgment and
perhaps to allow the bailiff to seize whom he regards as the violatory May be Hurry Kills  and hasten slowly  are mottos good for every one who exercises power either at the wheel of an automobile or through the pen of a public functionary
We will proceed to resolve these questions which unbosom their answers in their very formulation For instance does not the mere asking call for the obvious answer that no order by however high a power can be fair or reasonable if it jeopardises the person of a citizen wearing the armour of part III without so much as specificating the identity of the human being upon whom the authority is to lay hands
And yet the learned Munsif merely directed that the opposite party  plurality of three including the Central Government be sent to civil jail
Moreover the order notices that the Divisional Superintendent P2 has been transferred and yet the innocent transferee is put in peril of incarceration
Realising this fatal Haw the High Court sought to repair the yawning tear by making the in observation cum direction The learned Munsif Magistrate who passed the earlier ll order on January 5 1976 could not proceed with the proceedings for sending the petitioners concerned to Civil Jail 304 and also of attachment of the property
It would be for the Munsif concerned to name the officer concerned who is required to be sent to Jail and further to give details of the property to be attached for the purpose of compelling compliance as per finding already given in judgment dated January 5 1976 as modified in appeal
emphasis added The court was relentless even when informed that the payment of salary pursuant to the order passed by the High Court had already been made
The concluding portion of the High Court s judgment stated that the Munsif concerned should take prompt action for executing his order in respect of sending concerned officer to jail and the attachment of the property concerned as mentioned in his judgment   Both the orders keep the identity of the key persons and properties in uncertainty
We are a little startled that a court in the contempt jurisdiction should deprive the personal liberty of a person without naming in the order whom the Court s bailiff should take into custody or the jail authorities should receive
Equally clearly how could property be taken without its being particularised in the judgment disregarding procedural obligations  It is not as if without hearing the officer to be jailed and his case against detention considered the Munsif give ad hoc details of property to be attached without hearing the owner thereof as to his version about why his property should not be touched
The constitutional sanctity of liberty and the then protection of property will become chimerical and the processual law will hang limp is the substantive order is silent and identifying the offender is left over as a ministerial measure
The High Court was in error in leaving it to the trial court to designate such names when it actually issued the ministerial order to execute its decretal order
Nameless humans cannot be whisked off to prison even in the name of contempt by insertion of the name after the judgment is delivered
Natural justice is pervasive doctrine integral to processual fair play in Indian jurisprudence
For this reason alone the extent order under challenge is vulnerable against both the attachment of unspecified property and detention of unnamed contemners
Independently of this invalidatory circumstance it is apparent that there is no ground for judicial indignation once the facts are appreciated in their realistic setting
The order of injunction was made by the trial court on 15 4 74 and brought before the High Court where the revision petition was dismissed on 3 1 1979
Strictly speaking the order of injunction had not been stayed and should have been obeyed
305 It is no excuse to say that when appeal and revision pend litigative hopes lull people into insouciance
While this is not prudent it is component in judging about obstinate non compliance
To institute a proceeding for disobedience of an injunction commanding reinstatement of a government servant purportedly removed from service by the higher officers of the Railway together with payment of salary for prior periods is a stultification of the jurisdiction if sufficient time is not given
A little touch of realism would have easily convinced the High Court that a government servant of the Union of India who has been removed from service for misconduct could not be reinstated with full back pay immediately the order was made by the Court
It had to be communicated to various officers orders had to be made at various levels files had to move and notings made for gestation before implementation
All this takes time and when the court order is eventually effectuated the salary of the officer will of course have to be paid with effect from the original date of the impugned threat of action
To proceed to punish in haste without pausing to realise how government functions is not fair in this drastic jurisdiction where personal freedom is in peril
The description of is processes as prevalent in the days of Lord Curzon holds good to day
Here are his impatient words dipped in pungent ink 
the administration had become ponderous like an elephant very stately very powerful with a high standard of intelligence but with a regal slowness in its gait  Round and round like the diurnal revolution of the earth went the file stately solemn sure and slow and now in due season it has completed its orbit and I am invited to register the concluding stage
 We are in no mood to condone willful procrastination nor suffer wanton stagnation in Administration as a ground for default in obeying court orders
The Law does not respect lazy bosses nor cheeky  evaders 
But no proof of that species of guilt has been brought to our notice Mere inaction has no long mileage where means rea is a sine qua non We therefore regard the court s order holding the appellants in contempt a hasty measure probably annoyed by absence of instant compliance
306 The severity of the sentence is beyond comprehension
We cannot understand how the court could ignore the fact that salary had been paid from the date of the High Court s order upto date and the readiness to pay the back salaries on securing the appropriate sanction and drawl of cheque had been represented to the court
Before us the learned Solicitor General said that the entire back wages were ready to be paid and the necessary cheque had already beery drawn
We see no inclination on the part of the Government of India to adopt a challenging attitude against the court s writ
it is well known that the contempt power should be kept sheathed and the swore should be drawn only sparingly if the court is convinced that there has been willful defiance or disobedience
Moderation lends dignity to power and we feel that the facts of the present case far from call for any stronger step than an admonition to comply within a realistic spell of time and stiffer action thereafter
We do not take the view that the Union of India should be shown undue indulgence or its officer singular solicitude
But once there is clear evidence of active obedience V coupled with expression of regret delayed though the compliance be due to the inevitable time lag induced by paper logged procedures the court may be clement
Here compliance and contrition are now present
In these circumstances we allow the appeal and record the undertaking of the Union of India the 1st appellant that the entire salary due to the respondent will be paid within one week from to day


Summary:
The respondent a railway employee was proceeded against by the department for misconduct
He did not respond to the show cause  notice issued to him and when the disciplinary proceedings proceeded ex parte he filed a suit for a declaration of immunity and permanent injunction against further departmental action
He also moved an application for an ad interim injunction to restrain the department from affecting his position in service by continuing the disciplinary enquiry and to continue to pay his full salary
After hearing the Munsif directed that the respondent be placed in the same position that he held prior to the commencement of the departmental enquiry in the matter of pay privileges and all other perquisites that he availed and enjoyed
The department appealed against this order and awaited the decision in the District Court before implementing the direction for re instatement
In the meanwhile the respondent filed an application under Order 39 rule 23 of the Code of Civil Procedure for disobedience of the injunction order
The trial court finding that there was non compliance with the Munsif s order directed 15 days time for compliance with the said order and on failure thereof directed that the department shall be visited with the order of attachment of its property and its officers be sent to the civil jail
An unsuccessful appeal and an unrewarding revision was the lot of the department
The High Court made an observation cum direction that as the Munsif could not proceed with the proceedings for disobedience of the court s order it would be for the Munsif concerned to name the officer concerned who is required to be sent to jail and to give details of the property to be attached for the purpose of compelling compliance with the court s order
Allowing the appeal to this Court  HELD 1 1
The High Court was in error in leaving it to the trial court to designate the names when it actually issued the ministerial order to execute its decretal order
Nameless humans cannot be whisked off to prison even in the name of contempt by insertion of the name after the judgment is delivered 2
A government servant of the Union of India who had been removed from service for misconduct could not be reinstated with full back pay immediately the order was made by the Court
It had to be communicated to 299 various officers orders had to be made at various levels files had to move and notings made for gestation before implementation
All this takes time and when the court order is eventually effectuated the salary of the officer will of course have to be paid with effect from the original date of impugned threat of action
To proceed to punish in haste without pausing to realise how government functions is not fair in this drastic jurisdiction where personal freedom is in peril
305 B D 3
The constitutional sanctity of liberty and protection of property will become chimerical and the processual law will hang limp if the substantive order is silent and identifying the offender is left over as a ministerial measure
304 F 4
Where liberty and property are to be deprived it is fundamental that vagueness is a fatal vice even if the issuing authority be the court
302 G In the instant case the orders passed by the Munsif and the High Court keep identity of the key persons and properties in uncertainty
For this reason alone the orders are vulnerable against both the attachment of unspecified property and detention of unnamed contemners
304 C G 5
The law in the area of contempt of court must avoid the extremes of hyper reactivity to marginal indifference to judicial authority out of pragmatic difficulties
300 E 6
The fluid yet valid concept of contempt of court keeps judges under the rule of law for personal liberty is protected by a processual armour even if its deprivation be the product of the judicial process
300 E 7
The contempt power should be kept sheathed and the sword should be drawn only sparingly if the court is convinced that there has been wilful defiance or disobedience
306 C 8
Once there is clear evidence of active obedience coupled with expression of regret delayed though the compliance be due to the inevitable time lag induced by the paper logged procedures the court may be clement
306 D