Surendra Pandey vs Sri Mukesh Gautam Posted As ...
2013 Latest Caselaw 6368 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Hon'ble Ajai Lamba,J.

1. This order shall dispose of 26 cases in view of the fact that a number of writ petitions were disposed of in terms of judgement of this Court dated May 19, 2006 rendered in Writ Petition No.6368 (S/S) of 1997 titled 'Gokaran Prasad and others Vs. State of U.P. And others. The claims of all the petitioners in various writ petitions were considered by the respondent contemner by way of passing order Annexure No.3 dated 28.5.2011 (endorsed on 31.5.2011). Accordingly, claim in part of all the petitioners has been dismissed, for the reason given in the said order.

2. The petitioners/ applicants in all these contempt petitions plead that the order passed by the contemner on 28.5.2011 is not in compliance of the judgement at issue viz. judgement rendered by writ court in Gokaran Prasad's case (supra) and therefore the contemners be proceeded against under the Contempt of Courts Act, 1971 and be punished.

3. For reference to record, Crl. Misc. Case No.188 (C ) of 2012 : Surendra Pandey Vs. Shri Mukesh Gautam is being taken up.

4. Learned counsel for the petitioner contends that the writ court has issued clear cut directions for allowing promotion to the petitioner with effect from the date junior to the petitioner were promoted, and grant consequential benefits of promotional posts in terms of salary for the period the petitioners were in service, and subsequently pensionary benefits as permissible on the promotional posts. The pensionary benefits, have been granted however the salary of promotional post has not been granted, hence order at issue has been violated.

5. In a nutshell, contention of learned counsel for the petitioner is that respondent needs to be punished under the Contempt of Courts Act, 1971 for denying arrears of salary payable on the promotional posts.

6. Learned counsel appearing for the respondent contemner contends that the respondent contemner was directed to consider the claim of the petitioner. The claim of the petitioner has been considered in context of relevant legal aspects and order dated 28.5.2011 has been passed. In this view of the matter, if at all, the petitioner may seek, remedy of challenging the order passed by the contemner. So far as the contempt petition is concerned, no further action is required.

7. It has been stated by learned counsel for the petitioner that in some of the cases even pensionary benefits have not been released.

8. Shri Lalit Shukla, learned Additional Chief Standing Counsel has made

a statement on behalf of respondent contemner that in the cases wherein pensionary benefits have not been released, the needful would be done within four weeks from today.

9. Considering peculiar facts and circumstances of the case, Shri N.K.Seth, learned Senior counsel was requested to assist the court as Amicus Curiae. This court records that very effective, fair and clarificatory assistance has been given by Shri N.K.Seth.

10. The operative portion of the judgment at issue dated 19.5.2006 is required to be noted which is as under :-

"Thus, from the above discussions, it is clear that the action of respondents no.1 to 4 in not promoting the petitioner rather promoting their juniors totally arbitrary, illegal and violative of Articles 14 to 16 of the Constitution.

In the result the writ petition succeeds and allowed the order dated 3.3.1998 are hereby quashed and it respondents are directed to consider the claim of the petitioners to the post of S.A.S.Group II w.e.f. the date the junior to the petitioners have been promoted. Since the petitioners have retired from services and they are losers of pensionary benefits on account of non consideration of their promotion, their cases for promotion be considered with all consequential benefits within a period of two months from the date a certified copy of this order is produced before the authority concerned. No order as to costs.".

( emphasis supplied by me)

11. In deference to the judgement at issue, order Annexure No.3 dated 28.5.2011 has been passed wherein, while relying on judgment rendered by Hon'ble the Supreme Court in 1989(2) SLR 202 : Paluru Ramkrishnaiah & others Vs. Union of India and another, it has been said that on the principle of 'no work no pay', the petitioners would not be entitled to the arrears of salary on the promotional posts till the date of retirement. Consequently, all the petitioners in the cases being decided today, have been given notional promotion and pensionary benefits on the promotional posts.

12. Before proceeding further, a reference needs to be made to the judgment relied on by the respondent contemner while denying claim of the petitioner.

13. The Hon'ble Supreme Court of India in 1989(2) SLR 202 : Paluru Ramkrishnaiah & others Vs. Union of India and another, has held in the following terms ( relevant portion from paragrah 19, and para 20) :-

"19........It is now not disputed that the appellants of this appeal have in pursuance of the order of this Court dated 2nd February, 1981 been given a back date promotion to the post of Chargeman II synchronising with the dates of completion of their 2 years of service as Supervisor 'A'. The grievance of the petitioners, however, is that this promotion tantamounts to implementation of the order of this Court dated 2nd February, 1981 only on paper inasmuch as they have not been granted the difference of back wages and promotion to higher posts on the basis of their back date promotion as Chargeman II. As already noticed earlier certain writ petitions filed in Madhya Pradesh High Court were allowed by that Court on 4th April, 1983 relying on the judgment of this Court dated 2nd February, 1981 in Civil Appeal No.441 of 1981. Against the aforesaid judgment of the Madhya Pradesh High Court dated 4th April, 1983 special Leave Petitions (Civil) Nos.5987-92 of 1986 were filed in this court by the Union of India and were dismissed on 28th July, 1986. The findings of the Madhya Pradesh High Court in its judgment dated 4th April, 1983 thus stand approved by this Court. In this view of the matter to put them at par it would be appropriate that the appellants in Civil Appeal No.441 of 1981 may also be granted the same relief which was granted to the petitioners in the writ petitions before the Madhya Pradesh High Court. As regards back wages the Madhya Pradesh High Court held :-

"It is the settled service rule that there has to be no pay for no work i.e. a person will not be entitled to any pay and allowance during the period for which he did not perform the duties of a higher post although after due consideration he was given a proper place in the gradation list having deemed to be promoted to the higher post with effect from the date his junior was promoted. So the petitioners are not entitled to claim any financial benefits retrospectively. At the most they would be entitled to refixation of their present salary on the basis of the notional seniority granted to them in different grades so that their present salary is not less than those who are immediately below them."

In so far as Supervisors 'A' who claimed promotion as Chargeman II the following direction was accordingly given by the Madhya Pradesh High Court in its judgment dated 4th April, 1983 aforesaid :-

"All these petitioners are also entitled to be treated as Chargeman Grade II on completion of two years satisfactory service as Supervisor Grade-A. Consequently, notional seniority of these persons have to be refixed in Supervisor Grade A, Chargeman Grade-II, Grade-I and Assistant Foreman in cases of those who are holding that post...........The petitioners are also entitled to get their present salary

re-fixed after giving them notional seniority so that the same is not lower than those who are immediately below them."

20. In our opinion, therefore, the appellants in Civil Appeal No.441 of 1981 deserve to be granted the same limited relief. We are further of the opinion that it is not a fit case for initiating any proceedings for contempt against the respondents." ( emphasis supplied by me)

14. Thus, the principle of 'no work no pay' has been invoked to deny retrospective financial benefits, to the petitioners. The stand taken by the respondent is that the petitioner did not serve on the promotional post, therefore he is not entitled to the salary payable on the promotional post.

15. This Court has taken into account very carefully the directions issued by the writ Court. The directions issued by the writ court and portion that has been emphasised in the extracted portion above, indicates that the respondents were directed to consider the claim of the petitioners for the post of S.A.S Group-II w.e.f. the date junior to the petitioners have been promoted. Also, considering the fact that the petitioners had already retired from service, their cases for promotion, was required to be considered in context of consequential benefits.

16. In view of the above, this Court is required to consider whether by merely deciding the claim of the petitioners in the writ petitions and passing order dated 28.5.2011 ( Annexure No.3), the judgment at issue has been complied with, or not. In case the judgement has not been complied with the respondent needs to be proceeded against under the Contempt of Courts Act, 1971.

17. The scope of consideration under Contempt of Courts Act, 1971 is required to be seen.

18. In the above context, a reference needs to be made to (1996) 6 Supreme Court Cases 291 : J.S. Parihar Vs. Ganpat Duggar and others ( relevant from para 6) :-

"6...........Subsequently promotions came to be made. The question is whether seniority list is open to review in the contempt proceedings to find out whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the learned Single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act." (emphasis applied by me)

19. In (2000) 10 Supreme Court Cases 285 : Lalith Mathur Vs. L. Maheshwara Rao, the following has been held in paragraphs 3 and 4 :-

"3. The above will show that the High Court has directed the State Government to absorb the respondent against a suitable post either in a government department or in any public sector undertaking. This order, in our opinion, is wholly without jurisdiction and could not have been made in proceedings under the Contempt of Courts Act or under Article 215 of the Constitution.

4. The High Court in the writ petition had issued a direction for the consideration of the respondent's representation by the State Government. This direction was carried out by the State Government which had considered and thereafter rejected the representation on merits. In stead of challenging that order in a fresh writ petition under Article 226, the respondent took recourse to contempt proceedings which did not lie as the order had already been complied with by the State Government which had considered the representation and rejected it on merits." (emphasis supplied by me)

20. In (2002) 5 Supreme Court Cases 352 : Jhareshwar Prasad Paul and another Vs. Tarak Nath Ganguly and others, the following has been held ( relevant portion from paragraph 11) :-

"11. ..... If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein then it will be better to direct the parties to approach the court which dispose of the matter for clarification of the order in stead of the court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the court passing the judgment or order. If this limitation is borne in mind then criticisms which are sometimes levelled against the courts exercising contempt of court jurisdiction "that it has exceeded its powers in granting substantive relief and issuing a direction regarding the same without proper adjudication of the dispute" in its entirety can be avoided. This will also avoid multiplicity of proceedings because the party which is prejudicially affected by the judgement or order passed in the contempt proceeding and granting relief and issuing fresh directions is likely to challenge that order and that may give rise to another round of litigation arising from a proceeding which is intended to maintain the majesty and image of courts." (emphasis supplied by me)

21. To the contrary, learned counsel for the petitioner has relied on judgement rendered by the Hon'ble Supreme Court of India in (2007) 7 SCC 689 : Commissioner, Karnataka Housing Vs. C.Muddaiah ( para 32-34). The paras are extracted hereinbelow for ready reference :-

"32. We are of the considered opinion that once a direction is issued by a competent court, it has to be obeyed and implemented without any reservation. If an order passed by a court of law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the court. In our judgment, upholding of such argument would result on chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected.

34. We are conscious and mindful that even in absence of statutory provision, normal rule is "no work no pay". In appropriate cases, however, a court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering "as if he had worked". It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a court of law and if such directions are issued by a court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country ( as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected. ( emphasis supplied by me)

22. Considering the judgments rendered in (1996) 6 Supreme Court Cases 291 : J.S. Parihar Vs. Ganpat Duggar and others; (2000) 10 Supreme Court Cases 285 : Lalith Mathur Vs. L. Maheshwara Rao ; (2002) 5 Supreme Court Cases 352 : Jhareshwar Prasad Paul and another Vs. Tarak Nath Ganguly and others ; and (2007) 7 SCC 689 : Commissioner, Karnataka Housing Vs. C.Muddaiah, in context of jurisdiction of the contempt court, it transpires that the contempt court cannot review or revise the order passed by the authorities in consequence of an order passed by a court of law. After passing of the order by the contemner, a fresh cause of action would arise for the aggrieved party to seek its judicial review. Merely because the order passed by the contemner, in deference to order passed by a court of law is illegal, cannot be considered to be in wilful violation of the order of the court. Once the High Court in writ jurisdiction issues a direction to consider the representation made by a litigant which the Government/authority rejects on merits, the litigant is required to file a fresh writ petition under Article 226 of the Constitution of India in challenge to the order passed by the Government/authority. The said litigant cannot take recourse to contempt proceedings, which would not lie because order passed by the writ court, had already been complied with by the Government/authority.

23. From the above noted judgments, it also transpires that if judgment or order does not contain any specific direction regarding the matter or if there is any ambiguity in the directions, then it would be better for the parties to approach the court which disposed of the matter, for clarification of the order. The contempt Court should not ordinarily exercise contempt jurisdiction, taking upon itself the power to decide the original proceedings.

24. It also follows that once a direction is issued by a competent court, it has to be obeyed and implemented without any reservation. If a party is aggrieved by an order, the only remedy available with him is to challenge the order by taking an appropriate proceedings known to law. An order or judgment once passed, cannot be ignored or its effect diluted by saying that such directions could not have been issued by the court, the directions were illegal or were against the facts. If such a plea is allowed to be taken, it shall seriously affect and impair administration of justice and would result in chaos and confusion. It would bring end to rule of law.

25. As a corollary, this Court adds that the letter and spirit of a judgment/order at issue is required to be considered by the contempt court in context of action taken by the contemner. In case the same is not complied with and has been willfully disobeyed, the contemner would be amenable to proceedings under the Contempt of Courts Act, 1971. Once a judgement or order details the law and records findings of facts in a particular case and asks a party to the lis to take a decision in that regard, that party cannot pass an order in ignorance or contrary to the directions issued by the court. A finding of fact recorded by a court of law, or law laid down by the court, cannot be ignored, interfered with or re written by the authority taking a decision in deference to that order or judgment. Merely by considering the claim of a party, in consequence to a judgement or order passed by a court of law, would not be sufficient compliance, unless the consideration is in relevant aspects of the case, if such aspects are detailed in the judgement/order passed by a court of law.

26. The judgment relied upon by learned counsel for the petitioner would be of no avail to the petitioner for the simple reason that in the judgment passed by the writ court in this case, only a direction has been issued to the respondent to consider the claim of the petitioner for promotion and for all consequential benefits. The respondent contemner in his wisdom has considered the claim of all the petitioners in various writ petitions and has taken a decision on the basis of a judgement rendered by Hon'ble Supreme Court of India.

27. In peculiar facts and circumstances of this case, this Court finds that while relying on a judgment, and principle of 'no work no pay', part of the benefits have been denied. In such circumstances, it would be open to the petitioners in the writ petitions to seek judicial review of order dated 28.5.2011, passed by the respondent contemner.

28. This Court while exercising jurisdiction under the Contempt of Courts Act, 1971, will not be in a position to issue certiorari to quash the order or to issue other directions to the respondent. This Court has noticed that directions were issued by the writ court to the respondent to consider the claim of the petitioners which has been done, in relevant aspects.

29. In view of the above, all the aforesaid petitions are hereby dismissed.

30. The petitioners would be at liberty to challenge the order passed by the respondent contemner, if so advised.

8.10.2013/Shukla.