Chandraprabhaben Arjunbhai ... vs Mahesh Khadubhai Patel - ...
2022 Latest Caselaw 210 Guj

     C/MCA/247/2013                                   ORDER DATED: 06/01/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/MISC. CIVIL APPLICATION NO. 247 of 2013

           In R/SPECIAL CIVIL APPLICATION NO. 2798 of 2012

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      CHANDRAPRABHABEN ARJUNBHAI PATEL & 1 other(s)
                          Versus
 MAHESH KHADUBHAI PATEL - PRINCIPAL - T M PATEL SECONDARY
                     SCH & 2 other(s)
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Appearance:
MR DIPAK R DAVE(1232) for the Applicant(s) No. 1
MR AKSHAT C VIN(10740) for the Opponent(s) No. 3
MR CJ VIN(978) for the Opponent(s) No. 3
MR NK MAJMUDAR(430) for the Opponent(s) No. 1
MR YV VAGHELA(2450) for the Opponent(s) No. 2
MS BHAVANA M LALWANI(10640) for the Opponent(s) No. 3
==========================================================

 CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
       ARAVIND KUMAR
       and
       HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                              Date : 06/01/2022

                               ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. This contempt proceeding has been initiated for the violation or willful disobedience of the order dated 12.01.2012 passed in Application No. 169 of 2007 which is said to have merged with the orders passed in Special Civil Application No. 2798 of 2012, Civil Application No. 9337 of 2012 and Civil Application No. 10000 of 2012 and as such the complainant has sought for punishing the contemnors for the same.

2. On service of notice being effected on the respondents -

contemnors,           have   appeared,      filed   their      reply       affidavit





      C/MCA/247/2013                            ORDER DATED: 06/01/2022

contending inter alia that orders which are alleged to have been disobeyed has been complied. The order dated 12.01.2012 which came to be passed by the Tribunal namely the Gujarat Secondary Education Tribunal at Ahmedabad in Application No. 169 of 2007 which is said to have been disobeyed reads : -

"xxxxxxx In the result and for the foregoing reasons, this application is allowed. The order of termination dt. 30.4.07 is quashed and set aside. The respondents are directed to reinstate the applicant in service within 15 days with full backwages. For the reasons mentioned above, the exemplary costs of Rs. 10,000/- is awarded. The school management shall pay the said amount of costs and backwages to the applicant within 2 months from receipt of this order."

(emphasis supplied by us)

3. This order came to be challenged by the contemnors herein in Special Civil Application No. 2798 of 2012 which was heard along with Civil Application No. 10000 of 2012 and Civil Application No. 9337 of 2012 and by order dated 17.09.2012, the following order came to be passed : -

"5.0 Now the original petitioner has filed the above Civil Application No.10000 of 2012 inter alia stating that they have deposited only Rs.3,41,329 as per their calculation and as per the calculation of the respondent the amount is Rs.12,07,804 and that it is not possible for the school to deposit the difference of amount. The original petitioners further stated that the school is ready to reinstate the opponent no.1 employee.

6.0 Since the entire amount was not deposited, the opponent - employee has filed the aforesaid Civil Application No.9337 of 2012 to vacate the interim relief and for directing the original petitioner to deposit the remaining amount.

C/MCA/247/2013 ORDER DATED: 06/01/2022

7.0 As pointed out above, the original petitioner has stated that they are not in a position to deposit the entire amount and the interim relief was subject to deposit of entire amount. Further the original petitioner has also stated that they are ready to reinstate the opponent - employee. Therefore interim relief granted in Special Civil Application No.2798 of 2012 vide order dated 04.07.2012 is hereby vacated.

8.0 As regards the remaining amount of arrears is concerned, it will be open to the opponent employee to move appropriate application before the Education Tribunal. Once the opponent - employee is reinstated, it will also be open to the Tribunal to decide the appropriate pay-scale to be granted to the opponent - employee."

4. Thus, the interim order which was granted, came to be vacated and the Civil Application No. 10000 of 2012 as well as Civil Application No. 9337 of 2012 came to be disposed of. In other words it was held that it was open to the employee to seek appropriate relief before the Tribunal for the arrears of wages are concerned, since the pay-scale given extended by contemnor while complying the order of the Tribunal was seriously disputed by the employee.

5. At the first instance, this contempt proceeding came to be disposed of on 04.09.2013, whereunder this Court has held to the following effect : -

"4. On the aspects of entitlement of the petitioner to the pay scale of Rs.16,041/-, on the basis of which earlier the amount of Rs.3,41,329/- was deposited, Mr. Vakil, learned Counsel for the respondent is not in a position to dispute the fact. Consequently, if the petitioner was to be reinstated in service then she would be, in any case, entitled to the pay scale of Rs.16,041/-, keeping aside the dispute for higher pay-scale for the present and, in any case, the payment of the salary at Rs.3600/- cannot be said as full compliance to the order of this Court read with

C/MCA/247/2013 ORDER DATED: 06/01/2022

the order of the Tribunal.

7. On the aspect of difference of arrears of salary, in comparison to the amount already deposited of Rs.3,41,329/-, we find that the learned Single Judge has already observed at Para - 8 that it will be open to the employee to move appropriate application Application before the Education Tribunal and the Tribunal will decide the aspects of appropriate pay scale to be granted to the employee. Hence, the petitioner may resort to such proceeding or any other proceeding, as may be permissible in law.

8. In view of the above, the application is disposed of in terms of the aforesaid observation and direction. In the event the difference of the pay from May, 2012 to August, 2013, is not paid, the petitioner shall be at liberty to revive the present proceeding. It is further observed and directed that the respondent shall regularly pay the salary to the petitioner at Rs.16,041/-, subject to the finalization of the pay scale by the Tribunal, as observed by the learned Single Judge in the order dated 17.9.2012 at Para - 8. Application disposed of accordingly."

6. A plain reading of the above paragraphs including the orders passed by the Tribunal as well as order passed by the learned Single Judge on 17.09.2012 would clearly indicate that contemnors herein were directed to reinstate the applicant in service within 15 days and to pay full backwages with cost of Rs. 10,000/- awarded. There is no dispute to the fact that complainant having been reinstated into service. After having reinstated the complainant to service, the respondents in all have paid a sum of Rs. 6,92,177/- in four spells namely -

(i) Rs. 3,41,329/-

(ii) Rs. 40,800/-

(iii) Rs.2,13,802/-

(iv) Rs. 96,246/-

7. The core issue relates to payment of backwages. On the one

C/MCA/247/2013 ORDER DATED: 06/01/2022

hand, the complainant contends that even according to the contemnors, the pay-scale to which the complainant was entitled to was Rs. 16,041/- as against the claim of the contemnor being Rs. 4,500/-. In other words, there is a serious dispute with regard to the scale of pay to which complainant is entitled to. Before dwelling upon the said issue, it would be apt, appropriate and necessary to restate the sound principles governing the exercise of contempt jurisdiction by this Court. It is trite law that while exercising the contempt jurisdiction, this Court will have to confine itself to four corners of the order alleged to have been disobeyed and this Court cannot travel beyond such order. Only such orders, directions which are clear, unambiguous and explicit, in a judgment or order or are plainly self evident ought to be taken into consideration for the purpose of examining as to whether there has been disobedience or willful violation of the same. The Hon'ble Apex Court in the case of K. Arumugam versus V.

Balakrishnan and Others reported in (2019) 18 SCC 150, in its authoritative principles laid down has held : -

"18. In the contempt jurisdiction, the court has to confine itself to the four corners of the order alleged to have been disobeyed. Observing that in the contempt jurisdiction, the court cannot travel beyond the four corners of the order which is alleged to have been floated, in Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation Limited and others v. M. George Ravishekaran and others (2014) 3 SCC 373, speaking for the Bench, Justice Ranjan Gogoi held as under:-

"19. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not,

C/MCA/247/2013 ORDER DATED: 06/01/2022

adjudication of a contempt plea involves a process of self-determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. The Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self-evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or wilful violation of the same. Decided issues cannot be reopened; nor can the plea of equities be considered. The Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles would appear to be the cumulative outcome of the precedents cited at the Bar, namely, Jhareswar Prasad Paul and Another v. Tarak Nath Ganguly (2002) 5 SCC 352, V.M. Manohar Prasad v. N. Ratnam Raju (2004) 13 SCC 610, Bihar Finance Service House Construction Coop. Society Ltd. v. Gautam Goswami (2008) 5 SCC 339 and Union of India v. Subedar Devassy PV (2006) 1 SCC 613."

8. The power vested in this Court to punish the contemnor and alleged contemnor under the Contempt of Courts Act is a drastic power which if misdirected could even curb the liberty of the individual who is alleged to have committed the contempt. As held by the Apex Court in the aforesaid judgment, the very nature of power casts a sacred duty "to exercise such power with extreme care and caution". As held by the Apex Court more often then not adjudication of contempt plea involves process of self

C/MCA/247/2013 ORDER DATED: 06/01/2022

determination of sweep, meaning and the effect of the order alleged to have disobeyed. Recently the Hon'ble Apex Court in the matter of V. Senthur and another versus M. Vijaykumar, IAS, Secretary, Tamil Nadu Public Service Commission and Another reported in 2021 SCC OnLine SC 846, has held that Court will not travel beyond the original judgment and direction.

After referring to catena of judgments, it has been further held : -

"14. Jhareswar Prasad Paul and Another v. Tarak Nath Ganguly and Others, Midnapore Peoples' Coop. Bank Limited v. Chunilal Nanda and Others, V.M. Manohar Prasad v. N. Ratnam Raju and Another5 and Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation Limited and Others v. M. George Ravishekaran and Others.

15. There can be no quarrel with the proposition that in a contempt jurisdiction, the court will not travel beyond the original judgment and direction; neither would it be permissible for the court to issue any supplementary or incidental directions, which are not to be found in the original judgment and order. The court is only concerned with the wilful or deliberate non-compliance of the directions issued in the original judgment and order.

9. This Court examining the prayer of a complainant to punish the contemnor would ensure that while considering such a plea, the power available to the Court in other corrective jurisdiction like review, appeal or otherwise is not trenched upon. In this background, when we turn over attention to the facts on hand, it would emerge therefrom that neither in the order passed by the Tribunal nor said order as affirmed by this Court by order dated 17.09.2012, there is any categorical direction, order, muchless a positive direction fixing the scale of pay of the complainant at Rs. 16,041/-. As already observed hereinabove, the issue was relating to scale of pay to which complainant is entitled to.

C/MCA/247/2013 ORDER DATED: 06/01/2022

10. As observed hereinabove, this contempt proceedings had been closed on 04.09.2013. Again it was revived. In order to examine the rival contention raised in this regard, we may notice that while disposing of the contempt petition, the Coordinate Bench has observed that on the aspect of difference of arrears in salary in comparison to the amount already deposited of Rs. 3,41,329/- in paragraph 8 (of the learned Single Judge) that it will be open to the employee to move appropriate application before the Education Tribunal and the Tribunal will decide the aspects of appropriate pay-scale to be granted to the employee. At this juncture, the learned counsel appearing for the complainant has vehemently contended that there was no dispute to the fact of respondents having admitted to pay the complainant, the pay-scale of Rs. 16,041/- and there was only error in calculation and it is the claim of the complainant that she being entitled to higher pay-scale and this claim of higher pay alone was ordered to be resolved and as such the revival was never confined to the fixation of Rs. 16,041/- as it was an admitted fact. We are unable to subscribe to the said contention for reasons more than one; firstly - when the order of revival was passed on 10.03.2017 in Misc. Civil Application No. 2373 of 2016, the Coordinate Bench has clearly observed that it has not made any observation on the merits of the rival contention which related to the pay fixation. In the background of the above observations, when the order dated 04.09.2013 (relating to closure of the contempt proceedings at the first instance), it would clearly indicate that liberty to revive the present proceedings was granted only in the event of difference of pay from May, 2012 to August, 2013 is not paid. Undisputedly, according to the contemnors, the amount of Rs. 2,13,802/- relating to the period from May, 2012 to August, 2013 has been paid, which is also not disputed by the complainant. However, the complainant contends this

C/MCA/247/2013 ORDER DATED: 06/01/2022

quantification is improper, contrary to the admitted pay-scale of Rs. 16,041/-. Though the learned counsel for the complainant is correct in contending that in the order dated 04.09.2013, there was a direction issued that the respondents should regularly pay salary to the petitioner at Rs. 16,041/-, we are unable to subscribe to the said view, inasmuch as this contempt proceedings will have to be examined within the four corners of the order which is alleged to have been violated i.e. the order dated 12.01.2012 passed in Application No. 169 of 2007 and the order passed in Special Civil Application No. 2798 of 2012 and Civil Application No. 9337 of 2012 and Civil Application No. 10000 of 2012, whereunder, there is neither quantification nor fixation of pay-scale. Infact in the order passed in Civil Application No. 10000 of 2012 in Special Civil Application No. 2798 of 2012 with Civil Application No. 9337 of 2012 on 17.09.2012, the learned Single Judge has observed to the effect that the employee is reinstated, it will be open to the Tribunal to decide the appropriate pay-scale to be granted to the employee.

11. Though certain observations have been made by the Coordinate Bench and being conscious of the same, it is being examined as to whether this is a fit case where charge is to be framed and the proceedings be continued.

12. In view of the aforestated facts, we are of the considered view that the interim direction issued in this contempt proceedings are only ancillary and if there is any other positive direction issued in any other proceedings, it is always open to the complainant to file such application / petition as she may be advised and as such continuation of the present contempt proceeding does not arise and it stands dropped. Present Misc. Civil Application stands

C/MCA/247/2013 ORDER DATED: 06/01/2022

dismissed accordingly. All pending applications, stands consigned to record. Notice is discharged.

(ARAVIND KUMAR,CJ)

(ASHUTOSH J. SHASTRI, J) AMAR SINGH