Rajasthan High Court
Dr. Gyan Chand Mathur S/O Shri ... vs Hemant Gera, Ias, Secretary on 13 January, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Contempt Petition No. 1332/2019
Dr. Gyan Chand Mathur S/o Shri (Late) Manohar Lal Mathur, R/o
77, Sarti Nagar, Sodala, Jaipur (Raj)
----Petitioner
Versus
1. Hemant Gera, IAS, Secretary, Department Of Medical
Education, Government Of Rajasthan, Government
Secretariat, Jaipur
2. Smt. Roli Singh, IAS Principal Secretary, Department Of
Personnel, Government Of Rajasthan, Government
Secretariat, Jaipur
3. State Of Rajasthan Through The Secretary To The
Government Of Rajasthan, Medical And Health Service,
Jaipur
----Respondents
For Petitioner(s) : Mr. Anurag Sharma through V.C.
For Respondent(s) : Dr. V.B. Sharma, AAG through V.C.
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
13/01/2022
By way of this contempt petition, non-compliance of order
dated 30.10.2018 has been alleged contending that as per this
order, the respondents were required to count entire service
period of petitioner, and arrears of salary with all the retiral
benefits were required to be paid by the respondents to the
petitioner.
Counsel for petitioner fairly admits that during proceedings
of contempt petition, respondents have substantially complied
with order dated 30.10.2018 and all retiral benefits have been
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given but the arrears of salary for the period from 17.11.2001 to
18.12.2011, during which the petitioner was placed under
suspension, have not been paid. Therefore, conduct of
respondents be treated as contumacious for not complying with
order dated 30.10.2018 in letter and spirit. The petitioner has also
placed on record one order dated 15.05.2020 issued by Medical
Education Department. In that order it has been categorically held
that for the period of suspension, petitioner is not entitled for any
wages/salary except the suspension allowances which have
already been paid.
Respondents have filed reply to contempt petition contending
that due compliance of order dated 30.10.2018 has been made
and since petitioner was not entitled for salary, for the period of
suspension, therefore, the said period of suspension was not
counted for payment of salary and remaining period has been
counted and further all arrears and retiral benefits have been
given to the petitioner. The pension payment order dated
07.12.2020, gratuity payment order dated 07.12.2020 and the
payment of provident fund etc. have been placed on record to
show that no compliance of the order remains due on the part of
respondents.
Heard learned counsel for both parties and perused the
material available on record.
This is a case where petitioner was terminated from service
vide order dated 13.04.1999, which was challenged by petitioner
by way of filing S.B. Civil Writ Petition No.2100/1999. During
pendency of writ petition, respondents themselves reviewed the
order of termination dated 13.04.1999 vide subsequent order
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dated 22.10.2018 and the termination order was withdrawn and
the punishment given to petitioner was converted into warning.
This Court, following the order of State Government dated
22.10.2018, disposed of the writ petition on 30.10.2018, with the
following directions:-
"In view of order dated 22.10.2018 having been
passed by the State Government, it is now therefore,
directed to count the services of the petitioner
rendered with them and retiral benefits shall be
calculated accordingly. If any arrears are required to
be paid in accordance thereof, same shall also be
released in favour of the petitioner within a period of
three months henceforth."
It is clear that in the order dated 30.10.2018 passed by this
Court, there is no clear cut and specific directions, to pay the
salary to petitioner for suspension period i.e. 17.11.2001 to
18.12.2011. It is also clear that respondents, by a separate order
dated 15.05.2020, have observed that in view of previous order
dated 21.03.2018 passed by the Department of Personnel,
petitioner is not entitled for salary of the period of his suspension
and suspension allowances have already been paid.
In the opinion of this Court, the compliance of order dated
30.10.2018 has been made, though there is some delay in making
the compliance. However, for the delay, respondent-authorities
have tendered unconditional apology alleging the delay occurred
due to procedural lapses & latches. Thus, it is not a case where
respondents may be held guilty for non-compliance of order dated
30.10.2018 that too intentionally or willfully. As far as order dated
15.05.2020 is concerned, that is a separate and independent
order, and petitioner is free to assail the same, if he claims
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entitlement for salary for the period of suspension. This was not
subject matter in issue in the writ petition. In the proceedings of
contempt, this Court may not adjudicate or entertain any fresh
issue which was not at all subject matter in writ petition.
The Hon'ble Supreme Court, in catena of judgments has
observed that the proceedings of contempt are in the nature of
quasi criminal as to burden and standard of proof are concerned.
The powers under the contempt of Court Act should be exercised
with utmost care and caution and that too rather sparingly and in
the larger interest of the society and for proper administration of
the justice delivery system in the country. Exercise of power
within the meaning of the Act of 1971 shall thus be a rarity and
that too in a matter on which there exists no doubt as regards the
initiation of the action being bona fide. The Hon'ble Supreme
Court in the case of Anil Kumar Shahi (2) Vs. Ram Sevak
Yadav, reported in (2008) 14 SCC 115 has observed that
when the Courts direct the authorities to consider a matter in
accordance with law, it means the matter should be considered to
the best of understanding of the authorities, and therefore, a mere
error of judgment with regard to legal position cannot constitute
contempt of Court. There is no willful disobedience if best efforts
are made to comply with the order.
In the present case, respondents have applied their mind
and while complying with order dated 30.10.2018 and following
the order dated 15.05.2020, have not paid salary for the period of
suspension, though all other arrears and retiral benefits have been
paid, which have not been disputed by petitioner as well.
In view of above, it is not a case of deliberate or willful non-
compliance on the part of respondents and as far as delay in
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making compliance is concerned, this Court accept the
unconditional apology, bonafidely tendered by respondents before
this Court.
Accordingly, the contempt petition is dismissed, leaving it
open to petitioner raise his claim for salary of the period of
suspension, by way of separate and independent proceedings, if
he so desires. Notices of contempt petition are discharged.
(SUDESH BANSAL),J
TN/68
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