*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 28th April, 2011.
+ CONT.CAS(C) 303/2008 in W.P.(C) No.13709/2006
% MOHAN LAL GUPTA ..... Petitioner/Relator.
Through: Ms. Shobhana Takiar, Adv.
Versus
MOHAN LAL, SECRETARY, DAV MANAGING
COMMITTEE ..... Respondent/Alleged Contemnor.
Through: Mr. Rakesh Mahajan, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. Contempt is averred of the order dated 13th March, 2008 in W.P.(C) No.13709/2006 directing the alleged contemnor who was respondent no.1 in that writ petition "to pay the arrears of subsistence allowance from 28 th June, 2006 within four weeks and continue to pay the subsistence Cont.Cas.(C)303/2008 in W.P.(C)13709/2006 Page 1 of 7 allowance during the pendency of the present writ petition" to the petitioner relator.
2. Notice of the contempt petition was issued. The counsels have been heard.
3. The counsel for the petitioner relator has invited attention to Rule 116 of the Delhi School Education Act, 1973 relating to payment of subsistence allowance. The same provides for the payment of subsistence allowance at the amount equal to half of the pay last drawn, plus dearness allowances at the appropriate rate; it is further provided that if the suspension is extended beyond six months, the Managing Committee (of the School) shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of six months either by increasing the subsistence allowance if the period of suspension is prolonged for the reasons not directly attributed to the employee or by reducing the subsistence allowance if the period of suspension has been prolonged due to reasons directly attributed to the employee. Cont.Cas.(C)303/2008 in W.P.(C)13709/2006 Page 2 of 7
4. The counsel for the petitioner relator states that there is no dispute as to the payment of the suspension allowance for the first six months. It is contended that the dispute is for the period thereafter only; that the respondent alleged contemnor has reduced the subsistence allowance when it should have been increased. It is further contended that no subsistence allowance whatsoever is being paid for the last about one and a half years.
5. It has been enquired from the counsel for the petitioner relator as to whether there is any provision in the order dated 13th March, 2008 of which contempt is averred as to the rate on which the subsistence allowance was directed to be paid. The counsel has fairly stated that there is no direction with respect to the rate.
6. It has next been enquired as to how the contempt petition would be maintainable relating to rate, when discretion has been vested under Rule 116 (supra) in the Managing Committee of the School whether to increase or reduce the subsistence allowance after the first initial period of six months.
Cont.Cas.(C)303/2008 in W.P.(C)13709/2006 Page 3 of 7
7. The counsel for the petitioner relator in this regard has invited attention to the order dated 27th May, 2009 in the present proceeding where it was observed that since reduction of subsistence allowance entails civil consequences, before passing such an order principles of natural justice ought to be followed; accordingly the alleged contemnor was directed to file additional affidavit showing compliance of the said principles.
8. I may notice that the order dated 27th May, 2009 records that both counsels had agreed that on 17th March, 2009 the suspension of the petitioner relator had been revoked. The counsel for the alleged contemnor states that on such revocation of suspension, the petitioner is not entitled to any subsistence allowance and the same has accordingly not been paid.
9. Per contra, the counsel for the petitioner relator has argued that since this Court had in the order dated 13th March, 2008 of which contempt is averred directed payment of subsistence allowance during the pendency of the writ petition, the petitioner would be entitled to such subsistence allowance even after revocation of the suspension, though in law on such revocation, the question of entitlement of subsistence allowance does not Cont.Cas.(C)303/2008 in W.P.(C)13709/2006 Page 4 of 7 arise.
10. The counsel for the petitioner relator contends that the alleged contemnor had filed an application in W.P.(C) No.13709/2006 for modification/variation of the order dated 13th March, 2008 owing to the revocation of the suspension but contends that the said application was dismissed.
11. The counsel for the alleged contemnor denies that any such application was filed and was dismissed..
12. The counsel for the petitioner relator is unable to immediately produce the order if any in W.P.(C) No.13709/2006 refusing modification/variation of the order dated 13 th March, 2008.
13. The counsel for the alleged contemnor has also invited attention to Rule 116 to contend that the remedy of the petitioner if disputing the rate of subsistence allowance after the initial period of six months is thereunder i.e. by approaching the Director of Education. The counsel for the petitioner relator has also invited attention to Rule 116(3) which provides Cont.Cas.(C)303/2008 in W.P.(C)13709/2006 Page 5 of 7 for doubt as to the application of the Rule to be resolved in accordance with the orders issued by the Central Government in support of its employees.
14. In the absence of any direction in the order of which contempt is averred as to the rate at which subsistence allowance had to be paid, I am unable to hold any case for contempt having been made out. Whether, after six months, the suspension allowance ought to have been increased instead of decreased cannot also be subject matter of contempt.
15. As far as the payment beyond revocation of suspension is concerned, it has been enquired whether the inquiry against the petitioner has come to an end. It is informed that the inquiry itself has been stayed in a separate writ petition. The counsel for the petitioner relator further states that the alleged contemnor after revocation of suspension directed the petitioner relator to join duty in a School outside Delhi and which the petitioner relator could not have done and have thus deprived the petitioner of suspension allowance also.
Cont.Cas.(C)303/2008 in W.P.(C)13709/2006 Page 6 of 7
16. The aforesaid controversy is also in the circumstances best left to be adjudicated in W.P.(C) No.13709/2006 of order wherein contempt is averred and which is stated to be still pending. I refrain from making any observations about the entitlement of the petitioner to subsistence allowance even after admitted revocation of the suspension order.
17. With the aforesaid observations, the contempt petition is disposed of. No order as to costs.
RAJIV SAHAI ENDLAW (JUDGE) APRIL 28, 2011 bs Cont.Cas.(C)303/2008 in W.P.(C)13709/2006 Page 7 of 7