Afr vs Registrar (Judicial)
2023 Latest Caselaw 5722 Ori

                ORISSA HIGH COURT: CUTTACK


                        CONTAC NO. 6 OF 2021

      In the matter of an appeal under Section 19(1)(a) of the
      Contempt of Court's Act, 1971 from the order dated
      27.09.2021 passed by the learned Single Judge of this
      Court in Suo Motu CONTC No. 1863 of 2021.
                            ---------------

AFR

Nagendra Kumar Sethy ..... Appellant

-Versus-

Registrar (Judicial), Orissa High Court and Ors. ..... Respondents

For appellant : M/s Asok Mohanty, Sr. Advocate along with Mr. D.P.Das, Advocate

For respondents : Mr. L. Samantray, Addl. Govt. Advocate [Respondent No.1]

Mr. B.K. Behera, Advocate [Respondent No.2]

Mr. A.K. Mishra, Advocate [Respondent No.3]

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND HONOURABLE MR. JUSTICE M.S. RAMAN

Date of hearing and judgment :: 11.05.2023 // 2 //

DR. B.R. SARANGI, J. The appellant-contemnor has filed this

appeal challenging the order dated 27.09.2021 passed in

Suo Motu CONTC No. 1863 of 2021, by which the learned

Single Judge has sentenced the appellant to undergo

simple imprisonment for seven days for non-compliance of

the order dated 04.03.2020 passed in W.P.(C) No. 25638

of 2014.

2. The factual matrix which led to filing of this

appeal, in a nutshell, is that respondent no.2, who was

the petitioner in W.P.(C) No. 25638 of 2014 was initially

appointed as Watchman-cum-Peon in Jajpur Cooperative

Land Development Bank with effect from 16.09.1977 on

temporary basis. Subsequently, in pursuance of the

resolution passed by the Administrator Cadre Committee,

the respondent no.2 was promoted to the post of peon and

rendered service in the bank and, thereafter, he was

retired from service under the V.R. Scheme on

31.03.2007. The Secretary, CARD Bank, on 04.06.2010,

submitted a detailed claim statement of the staff and ex-

staff, including respondent no.2, in which the name of // 3 //

respondent no.2 appeared at sl.no.13. Though the

Registrar, Co-operative Society, Odisha, vide letter dated

24.07.2010 wrote to the Managing Director, OSCARD

Bank for release of funds to different CARD Banks out of

the debt waiver claim towards the interest margin, but the

grievance of the respondent no.2 was not mitigated. The

Govt. of Odisha in the Department of Public Enterprises,

by letter dated 24.01.2011, wrote to the Managing

Director, OSCARD Bank, Bhubaneswar regarding

introduction of VRS in OSCARD Bank and its primary

units with the financial assistances of the Department of

Public Enterprises through Odisha State Renewal Fund

Society (OSRFS) and directed to pay the arrear dues of the

respondent no.2 and other employees of the CARD Bank,

as clarified in the resolution dated 23.12.2005 of the

Govt. of Odisha, Department of Public Enterprises that

the arrear dues if any shall be the liability of the OSCARD

Bank. Aggrieved by the inaction of the opposite parties in

the matter of payment of retirement benefits, like arrear

salary, etc. total amounting to Rs.2,39,809/-, along with // 4 //

accrued interest, the respondent no.2 approached this

Court by filing the W.P.(C) No. 25638 of 2014.

2.1 After due adjudication, this Court taking into

consideration the rival contention of the parties, disposed

of the said writ petition, vide judgment dated 04.03.2020,

with the following direction:-

"In the backdrop of the aforesaid factual position and decision rendered in W.A. No.363 of 2011 dated 12.08.2014 (OSCARD Bank v. Sri Keshab Chandra Tripathy and others) and in W.A. Nos.364 of 2011 and 365 of 2011, the writ petition is disposed of with direction to opposite party nos.1 and 3 to act in tandem to see that arrear dues of the petitioner are paid with accrued interest @9% per annum from the date of entitlement till its payment within a period of eight weeks from the date of communication of the order and failure to comply the direction within the aforesaid period shall entail interest @9 % from the date of entitlement till its actual payment."

Due to non-compliance of the direction of learned Single

Judge of this Court contained in the judgment referred to

above, the respondent no.2 filed CONTC No. 3773 of

2020, which was disposed of by the learned Single Judge

on 16.10.2020 with the following order:-

"This matter is taken up through Video Conferencing // 5 //

Heard learned counsel for the petitioner.

This Contempt Petition is filed alleging violation of this Court's order dated 04.03.2020 passed in W.P.(C) No.25638 of 2014.

Considering the submissions made and as this Court finds, no purpose will be served in issuing notice in such matter, the Contempt Petition stands disposed of with a direction to the O.P.(s) to work out the direction of this Court issued in W.P.(C) No.25638 of 2014 on 04.03.2020, if not worked out in the meantime, within a period of fifteen days from the date of service of a copy of this order by the petitioner. Failure of compliance of this Court's direction, a suo motu contempt proceeding will be initiated against the O.P.(s).

Learned counsel for the petitioners may utilize the soft copy of this order available in the High Court's website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No.4587, dated 25.03.2020."

2.2 Since the above order of the learned Single

Judge was not complied with, Suo Motu CONTC No. 1863

of 2021 was initiated and after due adjudication, the

learned Single Judge disposed of the said suo motu

contempt petition, vide order dated 27.09.2021, the

effective part of which runs as follows:-

"7. Since Contemnor No.2 is in no mood in discharging his duty in the matter of payment in terms of the direction of this Court, at the same time keeping in view that there is no challenge to the order of // 6 //

Division Bench and Contemnor No.2 is still busy in challenging the direction of Single Bench in disposal of Writ Petition and Division Bench in the disposal of Writ Appeal, for this Court having got no scope to go to this extent in a contempt petition, while sentencing the Contemnor No.2 to undergo simple imprisonment for seven days finding there is no impediment in fully complying with the direction involved, permits the petitioner involving the writ petition to initiate execution proceeding for realization of interest under appropriate provision of law.

8. Keeping in view the request of Contemnor No.2 to provide him opportunity of Appeal, this Court grants ten days time to Contemnor No.2 for approaching the Higher Forum and obtaining interim protection, If any. Till then, he may not be arrested in the matter. Failure of obtaining interim order from the Higher Forum after expiry of ten days from today, the Contemnor No.2 shall surrender before the local police for serving the sentence passed in this proceeding."

Aggrieved by the aforesaid order passed by the learned

Single Judge, the present appeal has been filed.

3. Mr. Asok Mohanty, learned Senior Counsel

appearing along with Mr. D.P. Das, learned counsel for

the appellant contended that whatever dues admissible to

respondent no.2 have been paid to him and, as such, he

is not entitled to get any other benefit at this moment. It // 7 //

is further contended that respondent no.2 has already

been paid the interest, which is evident from the

compliance affidavit filed before this Court, wherein it was

specifically stated that in compliance of the order passed

by this Court in W.P.(C) No. 25638 of 2014 an account

payee cheque bearing no.153391 dated 09.09.2021

amounting to Rs.3,22,810/- of Cuttack Central

Cooperative Bank Ltd. Jajpur Town Branch, Jajpur was

handed over to respondent no.2. The total amount

received by respondent no.2 includes Rs.172/- towards

security, Rs.1,42,183/- towards arrear salary and

Rs.1,80,455/- towards interest. It is further contended

that respondent no.2 has already been paid 9% interest

on the arrear salary, which he is entitled to get in

pursuance of the direction given by this Court. As such,

no further amount can be paid to respondent no.2 with

regard to compounding interest. Thus it is contended that

the punishment so imposed by the learned Single Judge

cannot be sustained in the eye of law.

// 8 //

4. Mr. B.K. Behera, learned counsel appearing for

respondent no.2-employee, brought to the notice of the

Court Annexure-A, which is appended to the additional

affidavit dated 24.04.2023. The said Annexure-A contains

the liability position, as on 31.10.2012, of Jajpur CARD

Bank, wherein the name of respondent no.2 is found

place at sl.no.6. It is contended that respondent no.2 is

entitled to get Rs.97,454/- towards CPF, Rs.1,42,183/-

towards outstanding charges and Rs.172/- towards other

charges, total of which comes to Rs.2,39,809/-. The

respondent no.2 is entitled to get Rs. 3,02,148/- as

interest @ 9% per annum upon the principal amount for

the period from 31.03.2007 to 09.09.2021. Thus,

respondent no.2 is entitled to get Rs.5,41,957/-

(Rs.2,39,809/- + Rs.3,02,148/-). But, he having been

paid Rs.3,22,810/-, now he is entitled to get

Rs.2,19,147/- (Rs.5,41,957/- - Rs.3,22,810/-).

5. Mr. A.K. Mishra, learned counsel appearing for

respondent no.3-OSCARD Bank contended that so far as

CPF amount is concerned, the same should not be taken // 9 //

into consideration in view of the fact that the same has to

be paid by the CPF Commissioner and not the employer.

But, so far as outstanding charges, along with nine

percent interest, are concerned, the same have already

been paid to respondent no.2, as has been duly

acknowledged by him. Therefore, the calculation which

has been rendered by respondent no.2 including the CPF

amount cannot be sustained in the eye of law.

6. This Court heard Mr. Asok Mohanty, learned

Senior Counsel along with Mr. D.P. Das, learned counsel

for the appellant; Mr. B.K. Behera, learned counsel for

appearing for respondent no.2; and Mr. A.K. Mishra,

learned counsel appearing for respondent no.3- OSCARD

Bank in hybrid mode and perused the record. Pleadings

having been exchanged between the parties, with the

consent of learned counsel for the parties this appeal is

being disposed of finally at the stage of admission.

7. Before delving into the legality and propriety of

the order dated 27.09.2021 passed by the learned Single

Judge in Suo Motu CONTC No. 1863 of 2021 sentencing // 10 //

the appellant to undergo simple imprisonment for seven

days, which is the subject-matter of challenge in the

instant appeal, it is pertinent to note that outstanding

dues are to be paid to respondent no.2 by the appellant

along with interest at the rate of 9% per annum, as was

directed by the learned Single Judge in the order dated

04.03.2020 passed in W.P.(C) No. 25638 of 2014. As is

evident from the affidavit dated 14.09.2021 filed on behalf

of the appellant before the learned Single Judge in the suo

motu contempt proceeding, a detailed calculation was

made by the employer with regard to entitlement of

respondent no.2, in compliance of the order dated

04.03.2020 passed in the above noted writ petition, and

the entire dues of respondent no.2 were paid to him, but

the same has not been taken into consideration in proper

perspective by the learned Single Judge while passing the

order impugned. In the said affidavit, it was clearly

indicated that CPF amount of Rs.97,454/- cannot be

included in the total amount for calculation of interest at

the rate of 9% per annum. Rather, 9% interest is to be

calculated on the arrear salary of Rs.1,42,183/- and // 11 //

security amount of Rs.172/-. Accordingly, it was

calculated that respondent no.2 is entitled to get

Rs.1,80,455/- towards interest. Hence, a total amount of

Rs.3,22,810/-, including arrear salary of Rs.1,42,183/-

and security amount of Rs.172/- was paid to respondent

no.2 by the employer by way of demand draft, which was

duly acknowledged by him. Once the above amount has

been received by the respondent-employee, he cannot

turn around and ask for compounding interest @ 9%.

Under these circumstances, the impugned order of

punishment imposed by the learned Single Judge cannot

be held good.

8. It may not be out of place to mention here that

interest on the CPF amount has to be paid by the CPF

Commissioner. Since respondent no.2 has already

received his outstanding dues along with interest, the

observation to the contrary made by the learned Single

Judge cannot be sustained in the eye of law.

9. In the above view of the matter, this Court is of

the considered opinion that the order dated 27.09.2021 // 12 //

passed by the learned Single Judge in Suo Motu CONTC

No. 1863 of 2021 cannot be sustained in the eye of law

and the same is liable to be quashed and is hereby

quashed. Since the order of the learned Single Judge

passed in the writ petition, as referred to above, has

already been complied with, the appellant is discharged

from the contempt proceeding.

10. In the result, the appeal is allowed, but, under

the circumstances of the case, there shall be no order as

to costs.

..............................

                                                                DR. B.R. SARANGI,
                                                                     JUDGE

       M.S. RAMAN, J.                      I agree.

..............................

M.S. RAMAN, JUDGE

Orissa High Court, Cuttack The 11th May, 2023, Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA Date: 16-May-2023 18:31:14