Hasmukh Hirjibhai Songra vs K.A.Patel, Secretary Or His ...
2023 Latest Caselaw 6025 Guj

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     C/MCA/661/2023                           ORDER DATED: 18/08/2023

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       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/MISC. CIVIL APPLICATION NO. 661 of 2023
     In R/SPECIAL CIVIL APPLICATION NO. 15479 of 2022
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                  HASMUKH HIRJIBHAI SONGRA
                           Versus
 K.A.PATEL, SECRETARY OR HIS SUCCESSOR IN OFFICE & 2 other(s)
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Appearance:
MR. MUKESH T MISHRA(5900) for the Applicant(s) No. 1
MR AAKASH GUPTA, AGP for the Opponent(s) No. 1,2,3
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
       and
       HONOURABLE MR. JUSTICE M. R. MENGDEY

                          Date : 18/08/2023

                            ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. The present application is filed seeking compliance of the order dated 19.10.2022 passed in the captioned writ petition, wherein and whereby, the learned Single Judge has issued following direction : -

"7. The order dated 28.03.2022 therefore needs to be modified. The respondents are directed to consider the case of the petitioner from his initial date of appointment. Moreover, the pensionary benefits of the petitioner may also be revised accordingly and all consequential benefits be paid to the petitioner. The aforesaid exercise shall be completed within a period of ten weeks from the date of receipt of certified copy of this order. The petition is allowed, accordingly. Rule is made absolute to the above extent. Direct service is permitted.

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2. Pursuant to the notice issued by this Court, the respondent - authorities have passed the order dated 15.07.2023 considering the service of the petitioner right from the date of appointment and accordingly, the respondents have fixed the pay and have granted the consequential benefits. Along with the order dated 15.07.2023, the pay fixation order dated 17.07.2023 are also passed and the applicant is also paid the amount. The receipt of such amount is also produced along with such orders. The same are ordered to be taken on record.

3. At this stage, learned advocate Mr.Mukesh T. Mishra, while placing reliance on the judgment of the Supreme Court in the case of Salim Ali Centre for Ornithology & Natural History, Coimbatore and another Vs. Dr.Mathew K. Sebastian, [2022 LiveLaw (SC) 377], has submitted that the applicant is also entitled to the wages from the date of award to the actual appointment / reinstatement.

4. At this stage, it would be apposite to refer to the observations made by the Supreme Court in the case of Prithawi Nath Ram Vs. State of Jharkhand, [(2004) 7 SCC 261], the Supreme Court has observed thus : -

"8. If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach to the Court that passed the order or invoke jurisdiction of the Appellate Court. Rightness or wrongness of the order

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C/MCA/661/2023 ORDER DATED: 18/08/2023

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cannot be urged in contempt proceedings. Right or wrong the order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. While dealing with an application for contempt the Court cannot traverse beyond the order, non-compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible. In that view of the matter, the order of the High Court is set aside and the matter is remitted for fresh consideration. It shall deal with the application in its proper perspective in accordance with law afresh. We make it clear that we have not expressed any opinion regarding acceptability or otherwise of the application for initiation of contempt proceedings."

5. The Supreme Court has held that if any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach to the Court that passed the order or invoke jurisdiction. Rightness or wrongness of the order cannot be urged in contempt proceedings and the Court while examining the proceedings under the Contempt of Courts Act, cannot transgress the direction issued in the order.

6. Similarly, in the case of V. Senthur and another Vs. M. Vijaykumar, IAS, Secretary, Tamil Nadu Public Service Commission and another, [2021-SCALE-11-566], the Supreme Court has held thus:-

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"14. 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 willful or deliberate noncompliance of the directions issued in the original judgment and order.

7. Thus, it is held that 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 willful or deliberate non - compliance of the directions issued in the original judgment and order.

8. Hence, in view of the law enunciated by the Apex Court, this Court cannot delve into the issue with regard to the non- grant of such wages for the intervening period as there are no directions issued by the learned Single Judge in this regard. Thus, in view of the aforesaid order, we do not see any deliberate or willful disobedience of the directions issued by this Court, hence, the present contempt petition is rejected. Accordingly, the contempt proceedings stands closed.

9. If, in case the applicant is aggrieved by the decision of non-grant of wages for the intervening period, it would be open

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for him to file appropriate proceedings before appropriate Forum.

(A. S. SUPEHIA, J)

(M. R. MENGDEY,J) MAHESH/PC/01