Vibhuti Sharma vs Management Of Green Field Public ...
2014 Latest Caselaw 6451 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                               Cont. Cas. (C) No.845/2014

                                       Decided on : 04th December, 2014

VIBHUTI SHARMA                                         ...... Petitioner
             Through:                Mrs. Rachana Joshi Issar & Ms. Ambreen
                                     Rasool, Advocates.

                            Versus

MANAGEMENT OF GREEN FIELD PUBLIC SCHOOL & ORS
                                      ...... Respondents
           Through: Ms. Mamta Tandon for Mr. V.K. Tandon,
                     Advocate for DOE.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. The present contempt petition is premised on the wilful

disobedience of the order dated 13.8.2009.

2. The contention of the learned counsel for the petitioner is that by

virtue of the aforesaid order, the petitioner was to be given the benefit of

Sixth Pay Commission recommendations as well as the benefit of senior

scale in terms of the undertaking filed by Dr. (Mrs.) M. Barsaley,

Principal-cum-Manager, Green Field Public School, who is the

respondent herein.

3. I have considered the submissions made by the learned counsel and

have also gone through the order including the undertaking given by the

Principal-cum-Manager of the school, of which the wilful disobedience is

alleged. The order dated 13.8.2009 reads as under :-

"Learned counsel for the parties informed us that the matter has been amicably settled between the management and the concerned teachers. An affidavit/undertaking, incorporating the terms of the settlement has been placed on record along with annexure-A, stipulating schedule of payment.

Learned counsel for the appellant seeks leave to delete last sentence in paragraph-2 of the affidavit/undertaking. Leave granted. Last sentence in paragraph-2, beginning with the words "However, in case of two consecutive defaults......", stands deleted.

The undertakings contained in the affidavit are accepted.

The appellant-institution has agreed that Ms.Vibhuti Sharma will be entitled to salary as per the 6th Pay Commission recommendations from the date of her reinstatement i.e. 1st September, 2009.

In the light of the above, the order of the learned single Judge is set aside. The appeal stands disposed of in terms of the affidavit/undertaking of the appellant. Liberty is granted to the parties to apply in case of any difficulty.

Sd/-"

4. So far as the aforesaid order is concerned it takes note of the

undertaking, which reads as under :-

"2. ........ The Schedule of Payment shall be strictly adhered to by the appellants. The appellants undertake to abide by the said Schedule of Payment with further undertaking that there would be no default in the payments. However, in case of two consecutive defaults, the appellants undertake to pay the entire amount as calculated by the Directorate of Education.

3. That the two teachers, namely, Mrs. Rajni Bakshi and Mrs. Sarita Saxena, who were reinstated as per the statement made on behalf of the appellants in the court on 3.10.2008, shall be paid the salary as per the 6th Pay Commission Recommendations, from the date of their joining. The difference in the salary, from the date of their joining, shall be paid to the teachers within two months from the date of the order.

4. Mrs. Vibhuti Sharma, shall be reinstated w.e.f.

1.9.2009.

5. That the reinstated teachers would get the benefit of Senior Scale as per the Rules, treating them to be in continued service.

6. That the terms of this affidavit/undertaking and terms of Schedule of Payment shall be binding on the appellants."

5. The first contention of the learned counsel for the petitioner is that

there is disobedience in payment of arrears of Sixth Pay Commission to

the petitioner. The second grievance of the petitioner is that after

completion of 12 years of service, she was entitled to the senior scale

which has been denied to her and this fact has been learnt by her only

when persons junior to her were granted the said scale. Necessary

averments in this regard are purported to have been made by the

petitioner in the petition at page No.55 wherein the names of certain

teachers have been mentioned. Accordingly, the present petition was filed

for wilful disobedience of the undertaking and the consequent order

passed by the court.

6. Section 20 of the Contempt of Courts Act, 1971, reads as under:-

"20. Limitation for actions for contempt.--No court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed."

7. A perusal of the aforesaid provision would clearly show that it is

couched in negative language and a restraint is put from taking

cognizance of the contempt against any party after expiry of one year

from the date of accrual of the cause of action.

8. In the instant case, it is not in dispute that the petitioner, as per the

undertaking, was to be reinstated on 1.9.2009 and as a matter of fact, she

is stated to have been reinstated on the said date. The accrual of cause of

action to claim the arrears, therefore, starts running from 2.9.2009, that is,

next to the day of reinstatement and a petition for contempt on account of

non-payment of arrears ought to have been filed by 1.9.2010.

9. Even if a liberal construction is taken that the petitioner preferred

to wait for some reasonable amount of time, the said period could have

been stretched only to a few months. It is certainly not expected that a

person would wait for five years and then wake up claiming that in

accordance with the undertaking, which had been given by the

respondent, the arrears of Sixth Pay Commission have not been paid.

10. As a matter of fact, the undertaking which has been placed on

record states that the Principal-cum-Manager had attached a schedule of

payment of arrears but curiously the said schedule has not been annexed

along with the contempt petition. Therefore, it is not even known to the

court as to what was the schedule which was set down by the respondent

on the basis of which the payment was to be made.

11. The learned counsel for the petitioner has stated that no such

schedule was given to the petitioner.

12. Be that as it may, prima facie no action for contempt against the

respondent on account of non-payment of arrears can be taken after

expiry of five years; however, the petitioner will be well within her

liberty to seek such other appropriate remedies for recovery of the

amount, as may be permissible in law.

13. With regard to the payment of senior scale, the only undertaking

which has been given by the Principal-cum-Manager is that senior scale

will be paid to the reinstated teachers as per rules treating them to be in

continuous service. There is no dispute about the fact that the petitioner

has been reinstated on 1.9.2009. The contempt court cannot go into the

question with regard to the date when the petitioner was appointed or the

date on which she completed 12 years of service so as to enable her to get

the senior scale.

14. The learned counsel for the petitioner has drawn the attention of

the court to page No.220, i.e., the order dated 11.12.2008 purported to

have been issued by Directorate of Education, Government of NCT of

Delhi wherein at serial No.6, the name of the present petitioner has been

shown and under the heading 'Period of Arrears' from August 1997 to

September, 2008, some figures have been mentioned.

15. It is contended by the learned counsel for the petitioner that even if

this month of August, 1997 is taken as the date of confirmation of the

petitioner in service, she, as on date, has completed 12 years of service

and, therefore, she is entitled to senior pay scale.

16. The petitioner has not placed on record any order by virtue of

which she might have been rejected from the grant of senior scale. The

only contention made by the learned counsel for the petitioner is that

persons, who are junior to her, have been granted the senior scale in the

month of August, 2014.

17. In my considered opinion, non-grant of senior scale to the

petitioner would only give rise to a fresh cause of action to the petitioner.

Even in the absence of any formal order not having been communicated

to the petitioner which may entitle the petitioner to go to the court and

seek redressal of her grievance rather than file the present contempt

petition against the respondent and contend that the respondent/Principal

is guilty of wilful disobedience of the undertaking purported to have been

given by her.

18. For the aforesaid reasons, I feel the present contempt petition is not

maintainable. Accordingly, the petition is dismissed and the contempt

notice is discharged; however, the petitioner is free to take such recourse

to get her grievance both with regard to arrears of pay and allowances in

terms of the Sixth Pay Commission as well as alleged denial of the senior

scale to her and any other reliefs, in case she feels aggrieved, as may be

permissible in law.

V.K. SHALI, J.

DECEMBER 04, 2014 'AA'