Virendera Jain vs Naresh Dayal & Ors.
2010 Latest Caselaw 963 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         Cont. Cas. No. 545/2008

%                            Date of Decision: 19.02.2010

Virendera Jain                                               .... Petitioner
                            Through R.L. Dhawan, Advocate

                                     Versus

Naresh Dayal & Ors.                                         .... Respondent
           Through                   Nemo

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.   Whether reporters of Local papers may be                  YES
     allowed to see the judgment?
2.   To be referred to the reporter or not?                     NO
3.   Whether the judgment should be reported in                 NO
     the Digest?


ANIL KUMAR, J.

C.M. 8354/2009 in Cont. Cas (C) No.545/2008 *

This is an application by the petitioner/applicant seeking setting

aside of the order dated 05.05.2009 dismissing the petition in default of

appearance of petitioner and his counsel and on the premise that the

petitioner has received a payment and, therefore, he is not interested in

pursuing the contempt petition.

The notice of the application was issued to the respondents and

the time was sought by the respondent to file the reply to the contempt

petition as well as the application for restoration.

Neither the reply to the contempt petition has been filed nor the

reply to the restoration application filed on behalf of the respondents.

Despite matter having been passed over once, no one is even present on

behalf of the respondents.

In the circumstances, the prayer made by the applicant in the

application remains un-rebutted seeking restoration of contempt

application and needs to be accepted. The averments made in the

application makes out sufficient cause for setting aside the order dated

05.05.2009 dismissing the petition in default of appearance of

petitioner and his counsel.

In the circumstances, the application is allowed and the order

dated 05.05.2009 dismissing the contempt petition on account of

default in appearance of the petitioner and his counsel is set aside and

the Cont.Cas.(C) No.545/2008 is restored to its original number.

Cont. Cas. (C) 545/2008

The petitioner has invoked the jurisdiction of this Court under

Contempt of Court Act, 1971 and a direction to respondents, Secretary,

Ministry of Health & Family Welfare and Director General, Government

Health Scheme on the ground that the order dated 21st September,

2007, has not been complied with and the petitioner has not been paid

the amounts due to him.

According to the petitioner, he was involved in a false criminal

case, on account of which he was harassed and victimized and his full

pay and allowance during the period of suspension were denied to him

nor he was given time bound promotion at par with his junior as senior

Medical Officer and Chief Medical Officer, though, he was acquitted

from the criminal case in 1992.

The petitioner had filed a writ petition being WP (C) No.

9827/2003. During the pendency of the petition he had submitted his

resignation from service, which was accepted. Consequent thereto an

application was filed being CM 13940/2005 for early hearing, which

was disposed of by order dated 31st August, 2006 directing the

respondents to remit the amount which according to the respondents

were due to the petitioner on account of acceptance of his resignation.

The Court by order dated 31st August, 2006, however, declined the

prayer for early disposal of his writ petition.

According to the petitioner, the order dated 31st August, 2006,

was not complied with and therefore, he filed another misc. application

being CM No. 13241/2007 and prayed for early hearing.

The prayer of the petitioner for early hearing was again declined

by the order dated 21st September, 2007. However, the respondents

were directed to make payments of amount due to the petitioner.

The grievance of the petitioner is that the said order regarding

payment of the amounts due to the petitioner has been deliberately

disobeyed as no payment whatsoever including PF dues etc. has been

made. A representation dated 30th March, 2008 was also filed by the

petitioner for immediate payment of his rightful dues like PF dues,

invalid pension, Gratuity, Group Insurance Amount etc. In the

representation dated 30th March, 2008, the petitioner claimed salary

from the month of July, 2003, pension for over 15 years of qualifying

service, gratuity, group insurance allowance, arrears of conveyance

allowance, post-graduate allowance and contingency allowance, leave

salary, GPF and other payments.

This is not disputed by the petitioner that his representation

dated 30th March, 2008 was forwarded to the Additional Director,

Central Government Health Scheme by communication dated 15th May,

2008. Since the petitioner had not disclosed in the contempt petition

about any action taken on his representation, the petitioner was

directed to file an additional affidavit disclosing receipt of any

communication pursuant to forwarding his representation dated 30th

March, 2008 on 15th May, 2008 to Additional Director, Central

Government Health Scheme.

The petitioner, thereafter, on affidavit disclosed that he received a

communication dated 8th September, 2008 stipulating that his leave

from the period 1.2.1992 to 5.6.1995; 19.6.95 to 7.8.96; 20.11.1999 to

10.7.2003 and 22.7.2003 to 27.6.2006 was ordered to be treated as

Dies-non. The petitioner also disclosed that by communication dated

16th October, 2008, his pay was fixed from 1.1.96 in the pay scale of

8000-13500. The petitioner was also sent blank forms for CGEIS and

GPF for submitting after duly signing up for release of final payment in

respect of CGEIS and GPF.

Learned counsel for the petitioner has emphatically contended

that the period as indicated in the letter dated 5th September, 2008

could not be treated as Dies-non and therefore, the petitioner is entitled

for his pay for the said period. The learned counsel for the petitioner

has also challenged fixation of his pay from 1.1.96 in the pay scale of

Rs. 8000-13400. The learned counsel for the petitioner is, however,

unable to give any satisfactory explanation about not disclosing about

this communications treating his leave period as dies-non along with

the contempt petition.

The order dated 21st September, 2007, directed payment of

amount due to the petitioner. In case, the amount has not been found

payable to the petitioner and the period has been treated as Dies-non,

the petitioner cannot contend that there is willful and deliberate

violation of the order passed by this Court.

The power within the meaning of the Contempt of Courts Act,

1971, is to be used sparingly and in the larger interest of society and for

proper administration of justice and not for mere dis-obedience of an

order as the element of willingness and intention is indispensible

requirement to take action. It is also cannot be doubted that if two

views or interpretations are possible and the action of alleged

contemnor pertains to one of such interpretation which will raise

doubts about willful nature of conduct, if raised, contempt will not be

made out.

The Court by order dated 21st September, 2007, directed the

respondents to make payments of the amount due to the petitioner

without adjudicating as to what amounts are due or what is the

entitlement of the petitioner. The respondents have passed the

appropriate orders holding that the long period of leave is to be treated

as Dies-non. If the long period of leave is to be treated as Dies-non, the

petitioner shall not be entitled for any amount for the said period

unless, it can be held that the said period cannot be treated as Dies-

non. However, this is not to be adjudicated in a petition filed by the

petitioner for initiating contempt against the respondents in the present

facts and circumstances.

Similarly, the other disputes for non-payment of certain amounts

cannot be termed to be in violation of the order passed on 21st

September, 2007. The scope of adjudication in the contempt

proceedings is narrow and shall not include adjudication of entitlement

of the petitioner.

The Supreme Court of India in the case of Perspective

Publications Pvt. Limited Vs. State of Maharashtra, (AIR) 1971 SCC 221

had observed at page 230 as under:-

"The summary jurisdiction by way of contempt must be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice." (Per Grover, J.) Contempt of Court is essentially a matter which concerns the administration of justice and the dignity and authority of judicial Tribunals. It is not a right of a party to be invoked for the redress of his grievances. It is not also a mode by which the rights of a party, adjudicated upon by a Tribunal can be enforced against another party. Moreover, if the matter, as in the present case, requires a detailed inquiry, it must be left to the Court which passed the order and which presumably is fully acquainted with the subject-matter of its own order. When the matter relates to mere infringement of an order, as between parties, it is clearly inexpedient to invoke and exercise contempt jurisdiction as a mode of executing the order, merely because other remedies may take time or are more circumlocutory in character. Contempt jurisdiction should be reserved for what essentially brings the administration of justice into contempt or unduly weakens it (vide (1964) 68 Cal WN 148, AIR 1951 Pat 231, AIR 1966 Mad 21 and AIR 1971 ALL 231)."

Having carefully considered the allegations made in the contempt

petition, this Court therefore, is of the view that action of the

respondents do not fall within the ambit of committing willful and

intentional contempt of Court and the order dated 21st September, 2007

has been violated by the respondents. If the petitioner is aggrieved by

the orders passed by the respondent for the period of leave as Dies-non

and fixing the pay from 1.1.96 at 8000-13500, it will be open to the

petitioner to take his appropriate remedy in accordance with law.

Consequently, there are no grounds to initiate the contempt

proceedings against the respondents and contempt petition is therefore,

dismissed.

ANIL KUMAR, J.

FEBRUARY 19, 2010                             MOOL CHAND GARG, J.
Anb/'rs'