Radhey Shyam Mishra vs Shri Rajeev Rishi Chairman And ...
2023 Latest Caselaw 14670 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Neutral Citation No. - 2023:AHC-LKO:32431-DB
 

 
RESERVED
 
Court No. - 1
 

 
Case :- SPECIAL APPEAL No. - 282 of 2018
 
Appellant :- Radhey Shyam Mishra
 
Respondent :- Shri Rajeev Rishi Chairman And M.D.Central Bank Of India And Anr
 
Counsel for Appellant :- Radhey S.Mishra Inperson
 
Counsel for Respondent :- Gopal Kumar Srivastava
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Om Prakash Shukla,J.

1. Heard appellant-Radhey Shyam Mishra in person and Shri Gopal Kumar Srivastava, learned counsel representing the respondents.

2. Proceedings of this intra-court appeal have been instituted assailing the order dated 04.05.2018 passed by the learned Single Judge whereby Contempt No.997 of 2016 filed by the appellant has been disposed of.

3. At the outset, learned counsel representing the respondents, who are officers of Central Bank of India, has raised a preliminary objection regarding maintainability of this intra-court appeal under Chapter VIII Rule 5 of the Rules of the Court stating that the remedy of intra-court appeal against the order passed by the learned Single Judge in contempt jurisdiction exercised by him under Contempt of Courts Act is not available and as such the special appeal is liable to be dismissed on this count alone.

4. Replying to the said preliminary objection, the appellant has submitted that since the learned Single Judge while deciding the contempt petition has decided certain issues relating to the merit of the dispute between the parties and as such the order passed by the learned Single Judge is open to challenge in this appeal. Reliance in this regard has been placed by the appellant on the judgment of Hon'ble Supreme Court in the case of Midnapore People's Cooperative Bank Ltd. and others vs. Chunilal Nanda and others, reported in [2006 (5) SCC 399]. It has been argued, thus, by the appellant that since the learned Single Judge, by the order under challenge herein, has observed that the writ Court had not issued any direction to grant promotion to the appellant-petitioner in the officer cadre and thereafter fix his pension and that if the appellant feels that he is entitled to get promotion in the officer cadre as a consequence of the judgment passed by the writ Court, it would be appropriate that he may first get the judgment of the writ Court clarified or approach the appropriate forum for such relief, as such the learned Single Judge has not only touched upon the merit of the issues between the parties but has also decided the issues regarding entitlement of the promotion of the appellant to the officer cadre. The appellant, thus, argues that such a finding given and observations made by the learned Single Judge while passing the order under appeal, cannot be said to have been recorded or made in exercise of contempt jurisdiction hence the special appeal would be maintainable.

5. Learned counsel for the respondents, to butress his submission regarding non-maintainability of the Special Appeal, has placed reliance on the judgment of Hon'ble Supreme Court in the case of Midnapore People's Cooperative Bank Ltd. and others (supra) and also on the judgment passed by a Division Bench of this Court, dated 14.02.2022 in Special Appeal No.38 of 2022. He has also relied upon two other judgments of this Court, namely, (i) the judgment dated 13.07.2020 passed in Special Appeal No.262 of 2020 and (ii) the judgment dated 23.11.2021 passed in Special Appeal (Defective) No.467 of 2021.

6. The issue as to whether under what circumstances an order passed by the learned Single judge in a contempt petition is appealable in an intra-court appeal is no more res-integra as it has conclusively been settled by Hon'ble Supreme Court in the case of Midnapore People's Cooperative Bank Ltd. and others (supra). In paragraph 11 of the said judgment in the case of Midnapore People's Cooperative Bank Ltd. and others (supra) the conclusions drawn by Hon'ble Supreme Court are as under:-

"11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarised thus:

I. An appeal under Section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.

II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.

III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.

IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of "jurisdiction to punish for contempt" and, therefore, not appealable under Section 19 of the CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under Section 19 of the Act, can also encompass the incidental or inextricably connected directions.

V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases)."

7. The question, therefore, for our consideration is as to whether in the light of the submissions made by the appellant as also by the learned counsel representing the respondents, the instant intra-court appeal is maintainable under Chapter VIII rule 5 of the Rules of the Court or not.

8. For determination of the aforesaid issue, we need to note certain facts, which are undisputed between the parties. The appellant was appointed as a clerk in the Central Bank of India on 23.07.1973 whereupon he was confirmed on the said post, however, a departmental proceeding was instituted against him and consequently a charge-sheet was issued to him on 29.04.1981 containing certain charges allegedly amounting to misconduct on the part of the appellant. On conclusion of the departmental enquiry, the charges leveled against the appellant were found to be proved and accordingly the disciplinary authority by means of the order dated 22.04.1985 inflicted on him the punishment of dismissal from service.

9. The appellant challenged the said order of dismissal dated 22.04.1985 by instituting statutory appeal which too was dismissed by the appellate authority by means of an order dated 19.02.1986. The appellant raised an industrial dispute in respect of dismissal order dated 24.04.1985 and also the appellate order dated 19.02.1986 which was referred for adjudication by the Industrial Tribunal-cum-Labour Court, Kanpur. The reference, however, was answered against the appellant whereby punishment of dismissal from service was upheld but certain compensation was awarded to him.

10. Feeling aggrieved against the order of dismissal, the appellate order as also the award dated 30.04.1997 the appellant instituted Writ Petition No.1292 (S/S) of 1998 before this Court. Subsequently, in relation to certain developments which took place after the award, the appellant filed three other writ petitions, namely, Writ Petition No.5860 (S/S) of 2002, Writ Petition No.3446 (M/S) of 2009 and Writ Petition No.4328 (M/S) of 2013.

11. All the aforesaid writ petitions were clubbed together and decided by the learned Single Judge by means of a common judgment and order dated 15.02.2016 whereby the Writ Petition No.1292 (S/S) of 1998 was allowed and the award dated 30.04.1997, the order of dismissal dated 22.04.1985 and the appellate order dated 19.02.1986 were set aside. The learned Single Judge further in his order dated 15.02.2016 observed that the appellant shall be entitled to all consequential benefits except arrears of salary which was directed to be paid to the appellant to the extent of 50% only for the period after his dismissal from service till the date of judgment dated 15.02.2016. It was also directed by the learned Single Judge that the period from the order of dismissal till the date of judgment or till retirement, if in the meantime the appellant had retired, shall qualify for all purposes including retiral benefits.

12. Since we are concerned with the outcome of the Writ Petition No.1292 (S/S) of 1998 in this special appeal, the relevant extract of the operative portion of the judgment and order dated 15.02.2016 is quoted hereunder:-

"(I) Writ Petition No. 1292 (SS) of 1998 is hereby allowed. The award dated 30.04.1997 passed by Central Government Industrial Tribunal is hereby set aside. Further, dismissal order dated 22.04.1985 and appellate order dated 19.02.1986 are also set aside. Petitioner shall be entitled to all consequential benefits except arrears of salary which, in my view, would be payable to petitioner-Workman to the extent of 50% only since he has not worked with Bank after his dismissal from service till date. However, period from order of dismissal till date or till retirement, if in the meantime petitioner has retired, shall qualify for all purposes including retiral benefits. "

13. Alleging non-compliance and defiance of the judgment and order dated 15.02.2016 passed by the learned Single judge in Writ Petition No.1292 (S/S) of 1998, the appellant instituted contempt proceeding under the Contempt of Courts Act which was numbered as Contempt No.997 of 2016. It is this contempt petition which has been decided by the learned Single Judge by means of the order dated 04.05.2018 which is under appeal before us in this intra-court appeal.

14. In the contempt proceedings, an affidavit of compliance was filed by the respondent no.2 stating therein that the judgment and order dated 15.02.2016 passed in Writ Petition No.1292 (S/S) of 1998 had been complied with and in compliance of the said order, payment to be paid to the appellant was processed. The compliance affidavit further stated that the appellant had been paid a sum of Rs.13,50,462/- towards 50% back wages from the date of dismissal, Rs.1,19,465/- towards leave encashment on retirement and an amount of Rs.20,72,025/- towards gratuity.

15. It was also stated by the respondents in the compliance affidavit that at the time when the appellant was dismissed from service i.e. on 22.04.1985 though there was no pension scheme in the bank, however, in view of the judgment passed by the learned Single Judge, dated 15.02.2016 the appellant was being treated in service till he attained the age of superannuation i.e. till 30.09.2009 and further that though he is not a pension optee being out of service at the relevant point of time when pension regulations were enforced for the bank employees by the notification dated 29.09.1995, however, it has been decided to extend the benefit of pension to him provided he opts for the same in a prescribed proforma in terms of the relevant provisions of the pension regulations. It is the case of the respondents that the appellant thereafter opted for pension and accordingly he is currently being paid pension.

16. It was argued by the appellant before the learned Single Judge in the contempt petition that the writ Court by means of the judgment and order dated 15.02.2016 had not only set aside the award, dismissal order and the appellate order but also that the Court had in unambiguous terms provided that the appellant shall be entitled to all consequential benefits.

17. Learned Single Judge, however, while disposing of the contempt petition has recorded a finding that there is no direction issued by the writ Court in its judgment and order dated 15.02.2016 for grant of promotion to the appellant in the officer cadre and thereafter to fix his pension. Learned Single Judge has further observed in the order under appeal before us that in case the appellant thinks that he is entitled to get promotion in the officer cadre as a consequence of the judgment passed by the writ Court, it will be appropriate for him that he may first get the judgment of the writ Court clarified or to approach the appropriate forum for such relief. Learned Single Judge in the order under appeal herein dated 04.05.2018 further recorded a finding so far as the compliance of the judgment passed by the writ Court is concerned, in case the appellant applies and gives his option for pension on the basis of last pay drawn, the bank shall consider the same and do the needful for compliance of the writ Court's judgment. Learned Single Judge further observed while disposing of the contempt petition that so far as the grievance of the appellant that he had not been paid entire post retirement benefits is concerned, the Court under contempt jurisdiction is not required to determine as to what amount was due to the appellant and what has been paid to him. The learned Single Judge further observed that it would be appropriate that for the said purpose the appellant may approach the appropriate forum.

18. It is the this order dated 04.05.2018 passed by the learned Single Judge in contempt proceedings instituted by the appellant for non-compliance of the judgment and order dated 15.02.2016 passed by the writ Court which is under challenge before us in this intra-court appeal.

19. To determine as to whether the instant intra-court appeal is maintainable, we are called upon to decide as to whether the learned Single Judge while passing the order under appeal has given any finding on the merit of the issues involved between the parties. The relevant extract of the order dated 04.05.2018 passed by the learned Single Judge in respect of which the grievance in this special appeal has been urged by the appellant is extracted herein below:

"I am of the view that there is no direction of the writ Court to grant promotion to the petitioner in the officer cadre and thereafter fix his pension etc. In case the petitioner thinks that he is entitled to get promotion in the officer cadre as a consequence of the judgment passed by the writ Court, it would be appropriate that he may first get the judgment of the writ Court clarified or approach the appropriate forum for such relief. "

20. We have already extracted above the operative portion of the judgment and order passed by the writ Court, dated 15.02.2016 whereby it is not only that the dismissal order passed in respect of the appellant was set aside but it was also directed that he was entitled to be paid all consequential benefits. The question, thus, is as to whether the consequential benefits as ordered by the writ Court while passing the judgment dated 15.02.2016 will include promotion of the appellant in the officer cadre on notional basis and thereafter fixation of his pension on the basis of last pay drawn, had the appellant been promoted in the officer cadre. In our considered opinion, consequential benefits as directed to be given by the writ Court by means of the judgment and order dated 15.02.2016 will not include 50% of arrears of salary only, it will rather include the promotion as well, however, only on notional basis for the reason that the appellant in the meantime has retired on 30.09.2009. We are also of the opinion that consequential benefits ordered by a court of law is to be construed in the context in which the Court decides the proceedings. The simple, logical and rational interpretation has to be given to the expression 'consequential benefits' and according to us 'consequential benefits' mean all consequences emanating from the judgment passed by the writ Court whereby the order of dismissal has been set aside. It is also to be observed at this juncture that natural and legal result of setting aside the dismissal order is that the appellant will be deemed to have been in service prior to his attaining the age of superannuation. As a matter of fact, once the appellant is to be deemed to be in service, the consequential benefits shall include all the monetary and other service benefits including promotion, which would have been available to him had he not been dismissed from service.

21. We are also of the opinion that the judgment of the writ Court must be understood, construed and implemented in the aforesaid sense.

22. Reference in this regard may be had to a judgment of Hon'ble Supreme Court in the case of Central Bank of India and others vs. Dragendra Singh Jadon, reported in [(2022) 8 SCC 378]. In the said case, termination from service of the employee concerned was found to be unjustified and a direction was given to treat him in service from the date of his removal till the date of actual reinstatement in service. In the context of the facts of the said case Hon'ble Supreme Court in no uncertain terms observed that if a court grants an employee the relief of reinstatement and denies him back wages considering that the employee had not actually rendered the services in the intervening period but finds the termination of service to be wrongful, the employer cannot in such a situation take advantage of its own wrong of wrongfully dismissing the employee from service to deny him the benefit of seniority, promotion and other benefits to which he would have been entitled, if he had attended to his duties. Paragraphs 20 and 21 in the case of Central Bank of India and others (supra) are extracted hereunder:

"20. The Tribunal had granted the respondent, the relief of reinstatement. Considering that the respondent had not actually rendered service to the appellant Bank and that he had been earning in the intervening period, the Tribunal denied him back wages. The Tribunal and the High Court (both the Single Bench and the Division Bench) have in effect and substance found the termination of service of the respondent to be wrongful.

21. The appellant Bank cannot take advantage of its own wrong of wrongfully dismissing the respondent from service, to deny him the benefit of seniority, promotion and other benefits to which he would have been entitled, if he had attended to his duties."

23. Thus, it is more than clear as per the law laid down by Hon'ble Supreme Court in the case of Central Bank of India and others (supra) that if termination of service of an employee is found to be unlawful and relief of reinstatement is granted to him, such an employee may not be entitled to back wages, however, so far as the consequential benefits including the benefit of promotion and other benefits, he will be entitled as if his services were not terminated.

24. As far as the facts of the present case are concerned, the appellant was dismissed from service by means of the order dated 22.04.1985. However, the writ Court by means of the judgment and order dated 15.02.2016 has set aside the said dismissal order and directed for payment of 50% of arrears of salary for the interregnum period. The writ Court further clearly observed and directed that the appellant shall be entitled to all consequential benefits. It also directed that the period from dismissal of service till the date of judgment or till retirement of the appellant, if in the meantime the appellant has retired, shall qualify for all purposes including retiral benefits.

25. The stand of the respondents in this case is that the appellant has been made available the benefit of pension, however, the pension has been calculated on the basis of last pay drawn by the appellant while working on the post of clerk on the date of his attaining the age of superannuation. In our considered opinion, since the writ Court had clearly observed and directed that the appellant shall be entitled to all consequential benefits, the same would include the benefit of promotion as well, had the appellant not been dismissed from service. However, having observed so, since the appellant in the meantime has attained the age of superannuation on 30.09.2009, hence he shall only be entitled to be considered for promotion on the higher post(s) in officer grade on notional basis, that is to say, if he is found suitable and fit to be promoted to the higher post, he shall not be entitled to the salary of the post on which he is found suitable for promotion but his pension shall be fixed on the basis of last pay which would have been drawn by the appellant, had he not attained the age of superannuation.

26. Admittedly, in the present case, the pension of the appellant has been fixed not by giving him notional promotion in the officer cadre but by reckoning the amount of pension on the basis of last pay drawn on the post of clerk.

27. It is this issue, which has been agitated by the appellant before the learned Single Judge in the contempt proceedings which are now being pressed by the appellant before us in this intra-court appeal.

28. In the context of the aforesaid facts, we now proceed to consider as to whether by passing the order dated 04.05.2018, which is under appeal before us, the learned Single Judge has decided an issue on merits between the parties or not. Learned Single Judge, as observed above, in his order dated 04.05.2018 has opined that no direction by the Writ Court was given for grant of promotion to the appellant in the officer cadre and thereafter to fix the pension. Such a finding recorded by the learned Single Judge in the contempt proceedings, in our considered opinion, clearly not only touches upon the merit of the issues between the parties, but it decides the issues as if the appellant was not entitled to be considered for promotion and thereafter fixation of his pension on that basis. We have already observed above that grant of consequential benefits as directed by the writ Court in its judgment and order dated 15.02.2016 would include consideration of the claim of the appellant for his promotion to the next higher post(s) on notional basis and thereafter to fix the pension on the basis of last pay which would have been drawn by the appellant had he not been retired on 30.09.2009. Simultaneously, we note that since the appellant in the meantime has retired on 30.09.2009, he shall not be entitled to actual salary of the post on which he ought to have considered for promotion in compliance of the judgment and order passed by the writ court dated 15.02.2016.

29. Learned Single Judge while passing the order dated 04.05.2018, which is under appeal before us, has wrongly interpreted the order of the writ Court, dated 15.02.2016 and has recorded a finding that the writ Court had not issued any direction for grant of promotion and accordingly to fix the pension of the appellant. Such a finding clearly decides the dispute between the parties and hence in contempt jurisdiction, any decision made by the learned Single Judge deciding any issue between the parties is not permissible. Therefore, in view of the conclusion (v) as drawn by Hon'ble Supreme Court in the case of Midnapore People's Cooperative Bank Ltd. and others (supra), we hold that the instant special appeal is maintainable.

30. As regards merit of the order dated 04.05.2018 passed by the learned Single Judge in the contempt petition which is under appeal before us, we have already observed that consequential benefits, as directed by the writ Court by means of the judgment and order dated 15.02.2016, would include the benefit of consideration of the appellant for promotion to the next higher post and thereafter fixation of his pension on the basis of last pay which would have been drawn by the appellant had he not retired in the meantime on 30.09.2009.

31. At the cost of the repetition, we may observe that the legal and natural result and consequence of setting aside the dismissal order is that the appellant would be deemed to have been reinstated in service. Accordingly, the appellant is to be deemed to be in service as a consequence of the judgment and order dated 15.02.2016 passed by the writ Court and since the writ Court has not only set aside the dismissal order but has also held the appellant to be entitled to all consequential benefits, in our considered opinion, the observations made and findings given by the learned Single Judge that the judgment of the writ Court does not contain any direction for grant of promotion in the officer cadre and thereafter to fix the pension of the appellant is not liable to be sustained.

32. For the discussion made and reasons given above, the special appeal deserves to be allowed.

33. Resultantly, the special appeal is allowed. The order dated 04.05.2018 passed by the learned Single Judge in Contempt No.997 of 2016 is hereby set aside.

34. The contempt petition is restored on the board of the learned Single Judge to be decided afresh after giving opportunity of filing additional pleadings, if any, to the parties.

35. We also request the learned Single Judge to expedite the proceedings of Contempt No.997 of 2016 and conclude the same as early as possible.

36. However, there will be no order as to costs.

 
Order Date :- 10.05.2023
 
akhilesh/
 

 

 
(Om Prakash Shukla, J.)    (D. K. Upadhyaya, J.)