Mohan Lal Gupta vs Mohan Lal, Secretary, Dav ...
2011 Latest Caselaw 2281 Del

             *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

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.

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.

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

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

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.

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