Suresh Srikrishna Naik vs Department Of Social Welfare, ...
2002 Latest Caselaw 232 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard Mr. Jamdar, learned Advocate for the petitioner and Mr. Sawant, Special Counsel and Mr. Sonawane, learned Assistant Government Pleader, appearing for respondent Nos. 1 and 2. Perused the records.

2. The petitioner's complaint relate to non-compliance of an order dated 18th January, 2000, by the respondents herein. It is a case of the petitioner that the petitioner filed a writ petition challenging discriminatory treatment being meted out to the petitioner who was a teacher in the institution recognised by the Social Welfare department inasmuch as that the pensionary benefits were refused to the petitioner though the same were granted to other members of the teaching fraternity in various departments.

3. Undisputed facts are that Writ Petition No. 5467 of 1999 filed by the petitioner was allowed by this Court vide judgment and order dated 18th January, 2000 and it was ordered thus :--

"The decision of the State Government to deny benefits of pension-cum-gratuity scheme to teaching and non-teaching staff of the institutions/colleges under the Social Welfare Department taken on 8th July 1998 and communicated by the Director, Social Welfare Department vide letter dated 31st March, 1999, is set aside and the State Government is directed to consider extension of such benefits to the teaching and non-teaching staff working in the institutions/colleges under the Social Welfare Department in a phased manner. Once this scheme is made applicable, the option as well as adjustment of contributory provident fund paid to them can be worked out and adjusted. Rule is made absolute in the aforesaid terms with no order as to costs."

4. The grievance of the petitioner is that the respondents have failed and neglected to obey the said order of the Court till this date and they have not taken any steps whatsoever for complying the direction issued by this Court. Being so, it is a fit case, for proceeding against the respondents for contempt of Court for not implementing the said order.

5. On the other hand, it is a case of the respondents that the proposal for pensionary benefits to the teaching and non-teaching staff working in various colleges under the Social Welfare Department was prepared on 29th March, 2001 and submitted to the concerned Department, i.e. Higher and Technical Education Department and Finance Department for their approval on 29th March, 2001 and then submitted for approval of the Cabinet on llth July, 2001. After going through the records and the present financial position of the Government of Maharashtra and various policies of the Government of Maharashtra, whereby efforts are made to curtail expenses of various departments and not to increase the liability of the Government, a conscious decision has been taken by the Government that no pensionary benefits will be extended to the teaching and non-teaching staff working in the Social Work Colleges/institutions under the Social Justice Department. It is further stated that the total burden and financial liability on the Government in case such benefits are granted to such staff, would be Rs. 276 lacs per year for pension and Rs. 840 lacs for gratuity and commutation of pension. It has been further disclosed that the case was considered by the Government and the Government is unable to extend the pensionary benefits for such staff for the reasons given in the affidavit filed by the respondents which disclose the financial stringencies and constraints.

6. The learned Advocate appearing for the petitioner, placing reliance upon the decisions of the Apex Court in the matter of Kapildeo Prasad Sah and Ors. v. State of Bihar and Ors. , Salkia Businessmen's Association v. Howra Municipal Corporation, reported in 2001 SOL Case No. 444 and Shri Baradkanta Mishra Ex-Commissioner of Endowments v. Shri Bhimsen Dixit , submitted that inspite of specific directions having been issued to the respondents to consider extension of the benefits which are granted to other members of the teaching fraternity to the teaching and non-teaching staff working in the institutions/colleges under the Social Welfare Department in a phased manner, the respondents in violation of the said order, have refused such benefits being granted to such staff. Failure on the part of the respondents to grant such benefits in a phased manner in spite of specific directions in that regard by the said judgment and order dated 18th January, 2000, according to the learned Advocate for the petitioner, clearly warrants action against the respondents under the Contempt of Courts Act. On the other hand, the learned Advocate appearing for the respondents, relying upon the decisions in the matter of Chhotu Ram v. Urvashi Gulati and Anr. , Lalith Mathur v. L. Maheswara Rao , State of Maharashtra and Ors. v. Dr. Hari Shankar Vaidhya and Ors. and Ugar Sugar Works Ltd. v. Delhi Administration and Ors. , submitted that the direction by the Court was to consider whether the benefits can be granted to the teaching and non-teaching staff working in the institutions/colleges under the Social Welfare Department in a phased manner or not, and there was no direction that such benefits should be granted to the employees of the teaching and non-teaching staff working in various institutions/colleges. The direction was only to consider whether such benefits could be granted or not.

7. As already pointed out above, the Court, by an order dated 18th January, 2000 had directed the respondents to consider extension of such benefits to the teaching and non-teaching staff working in the institutions/colleges under the Social Welfare Department in a phased manner. Referring to the declaration regarding setting aside of the decision dated 8th July, 1998 and communication thereof by letter dated 31st March, 1999, which had preceded the direction in question, the learned Advocate for the petitioner has sought to contend that it discloses a clear decision by the Court to the effect that refusal to grant such benefits to the staff in question was deprecated and, therefore, the Government was specifically directed to grant such benefits to the said members of the staff. In that connection, attention is also drawn to the observations by a Division Bench in the said Judgment to the effect that "in a welfare state, the Government is bound to look after the interest of all the employees similarly situated without any discrimination whatsoever." There is no doubt that the Division Bench, while issuing the direction as stated above, had set aside the decision of the respondents which was taken on 8th July, 1998, denying benefits to the staff members of the institutions/colleges working under the Social Welfare Department. However, merely because the said decision was set aside by the Judgment dated. 18th January, 2000, there is no scope to conclude therefrom that the Government is prohibited or restrained from taking any policy decision, denying such benefits to the staff members of the institutions/colleges working under the Social Welfare Department. In order to understand the exact nature of the direction, it will be necessary to ascertain the scope of the expression "consider" in the said order.

8. The term "to consider" has been defined in the Shorter Oxford English Dictionary to mean "to view attentively, to survey, to examine, to look alternatively, to contemplate mentally, to think over, to take note of, to think deliberately, to be think oneself." In other words, the direction which is stated to have been issued by the order dated 18th January, 2000 was to examine or to think over the extension of such benefits to the teaching and non-teaching staff working in the institutions under the Social Welfare Department in a phased manner. There was no mandate as such issued to the respondents to extend such benefits to the teaching and non-teaching staff working in the institutions under Social Welfare Department in a phased manner. Merely because its earlier decision denying such benefits was set aside, that itself would not be sufficient to conclude that the direction to consider the grant of such benefits in a phased manner would mean the mandate to grant such benefits by way of phased manner. The direction was in fact to consider such benefits if at all can be granted in a phased manner or not. There was no mandate to say that under no circumstances the benefits should be refused to the staff members employed in the institutions/colleges working under the Social Welfare Department.

9. Perusal of the affidavits filed in reply by the respondents disclose that the Government of Maharashtra, after going through the records and considering the present financial position, has taken a conscious decision not to grant such benefits to such staff members even by way of phased manner. It is not a case that the respondents refused to take any decision in the matter. It is also not a case that the respondents refused to apply their mind to the matter in issue. In fact, the affidavit filed by Mrs. Vaishali A. Parkar, Under Secretary to Government, Social Justice, Cultural Affairs, Sports and Special Assistance Department, on 10th September, 2001 clearly discloses data which was considered while arriving at a decision which has been arrived at by the respondents in the matter. It has taken into consideration the number of colleges and institutions as well as staff members employed therein who are required to be considered while considering extension of such benefits to them. It also discloses anticipated expenditure which the Government may incur on account of such benefits to such staff members. It also discloses the consideration of the financial position of the Government and after considering all these aspects, has arrived at a decision that merely because such benefits have been granted to some other employees in some other institutions, it cannot be extended to the employees of the institutions in question. Certainly, it cannot be said that the respondents have failed to consider the viability of extension of those benefits to the staff members in the institutions under the Social Welfare Department.

10. The reference to Bhimsen Dixit's case by the learned advocate for the petitioner was to draw attention to paras 15 and 16 thereof. It has been held by the Apex Court therein that "just as the disobedience to a specific order of the Court undermines the authority and dignity of the Court in a particular case, similarly the deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. "Attention is drawn to this observation by submitting that in view of the fact that the High Court in its decision had set aside the earlier decision of the respondents denying the benefits to the staff members of the institutions under the Social Department and having directed to consider the same to be extended by phased manner, the case is squarely covered by the said observation of the Apex Court. However, as already observed above, merely because the decision to grant the benefit was set aside, that itself cannot be construed as a direction to grant such benefits to the staff members of such institutions in view of the specific direction given by the Court to the respondents "to consider" such extension being granted to such staff members in a phased manner. Apparently, the Court had taken into consideration the fact of financial constraints by the Government and, therefore, it was left to the Government to take appropriate decision in the matter and to see to it if such benefits can be granted in phased manner. Being so, the said observations of the Apex Court is of no help to the petitioner for the action of contempt of Court in relation to the said order dated 18th January, 2000. The decision of Bhimsen Dixit case rather than assisting the petitioner's contention in the matter, justifies refusal of any action against the respondents. The Apex Court therein has clearly held that "Contempt of Court is disobedience to the Court, by acting in opposition to the authority, justice and dignity thereof. It signifies a wilful disregard or disobedience of the Court's order; it also signifies such conduct as tends to bring the authority of the Court and the administration of law into disrepute." Apparently before initiating action under the Contempt of Courts Act against a party, it is necessary to ascertain whether that the party has acted in wilful disregard or disobedience of the Court's order. The act on the part of the respondents in disregarding or disobeying the order has necessarily to be wilful. The facts disclosed in this case apparently reveal that the decision not to extend the benefit even by phased manner to the staff members of the institutions under the Social Welfare Department has been taken on account of the financial constraints by the respondents. Certainly the said decision has been taken pursuant to the direction to consider such extension in phased manner. The very fact that while setting aside the earlier decision of 8th July, 1998 denying such benefits the Court had chosen not to give any direction beyond leaving it to the discretion of the respondents to take appropriate decision of the matter, discloses that the respondents were not given any specific direction for extension of such benefits and in such circumstances if the respondents have denied or refused to grant such benefits to the staff members of the institutions in question, it cannot be said that there is any disobedience of the Court's order, much less wilful disobedience.

11. Similarly, the decision in Salkia Businessmen's Association is also of no help to the petitioner in the matter. In para 8 thereof, which was sought to be relied upon in support of the contention of the learned Advocate for the petitioner, it has been held by the Apex Court that "as long as the earlier order dated 13-2-1991 stood, it was not permissible to go behind the same to ascertain the substance of it or nature of compliance when the manner, mode and place of compliance had already been stipulated with meticulous care and detail in the order itself. The said decisions was also not made to depend upon any contingencies beyond the control of parties in the earlier proceedings." Undisputedly, in the case before the Apex Court by order dated 13-2-1991 of the learned Single Judge of Kolkata High Court had accepted the compromise arrived at between the parties was accepted and the petition was accordingly disposed of and the compromise clearly disclosed in what manner the displaced persons were to be accommodated on account of construction of Flyover in the area of Grand Trunk Road (North) in and around Salkia Chowrasta at Kolkota. Apparently, that is not the case in relation to the order in question. There was no specific direction, as already observed above, for extension of benefits to the staff members of the institutions in question. On the contrary, a direction was only to consider the issue of extension in a phased manner. In other words, the issue pertaining to possibility of extension of such benefits to such staff was left entirely to the discretion of the respondents.

12. The Apex Court in Chhotu Ram's case has clearly observed that the conduct in order to come within the purview of the statutory provisions must be wilful and deliberate. It has been further observed that "the introduction of the Contempt of Courts Act, 1971 in the statute-book has been for the purposes of securing a feeling of confidence of the people in general and for due and proper administration of justice in the country. It is a powerful weapon in the hands of the law Courts by reason wherefor the exercise of jurisdiction must be with due care and caution and for larger interest. Similar is a decision of the Apex Court in Kapildeo Prasad Sah which has been relied upon by the petitioner, therein, it has been observed that "for holding the respondents to have committed contempt, Civil Contempt at that, it has to be shown that there has been wilful disobedience of the judgment or order of the Court. Power to punish for contempt is to be resorted to when there is clear violation of the Court's order. Since notice of contempt and punishment for contempt is of far-reaching consequence, these powers should be invoked only when a clear case of wilful disobedience of the Court's order has been made out. Whether disobedience is wilful in a particular case depends on the facts and circumstances of that case." It has been further observed that "initiation of contempt proceedings is not a substitute for execution proceedings though at times that purpose may also be achieved." It has been further ruled that "wilful would exclude the casual, accidental, bona fide or unintentional acts or genuine inability to comply with the terms of the order."

13. The view that I am taking in the facts and circumstances of the case in hand, clearly finds support from the decision of the Apex Court in Lalith Mathur's case, therein while considering the allegation of non-compliance of the Court's order to consider their employee's representation has held that an order giving direction to consider the employee's representation by itself would not amount to direction to absolve the respondent in the post in relation to which the representation was sought to be made by him. But it would mean that the Government will have to consider the representation on merits and to take appropriate decision on such representation. It has been further observed that once the State Government has considered and rejected the representation on merits, it could not be said that there was violation of such orders of the Court.

14. Considering the decisions of the Apex Court referred to above and the facts and circumstances of the case in hand, it cannot be said that there is any violation by the respondents in relation to the order passed by this Court on 18th January, 2000 in Writ Petition No. 5467 of 1999 and much less wilful or deliberate violation thereof and hence the notice issued in the matter requires to be withdrawn and proceedings dropped. Accordingly, the notice is withdrawn and the proceedings are dropped. The contempt petition stands rejected.

Needless to say that all the observations herein are only to ascertain whether there is a case for proceeding against the respondents for contempt of Courts and not, and for no other purpose.