Rajasthan High Court

Balbir Singh Khandekar vs Ashok Singhvi on 25 January, 2022

Bench: Sudesh Bansal

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

             S.B. Civil Contempt Petition No. 398/2012
Balbir Singh Khandekar S/o Shri Ramdhan Khandekar, R/o Regar
Mohalla, Kishangarh Renwal, District, Jaipur Raj
                                                                    ----Petitioner
                                       Versus
1.      Shri Ashok Singhvi, C.m.d. Rajasthan Small Industries
        Corporatiob Ltd. Udyog Bhawan, Tilak Marg,c-Scheme
        Jaipur
2.      Shri Jaswant Sampatram, Managing Director, Rajasthan
        Small Industries Corporation Ltd., Udyog Bhawan, Tilak
        Marg, C-Scheme, Jaipur
                                                                 ----Respondents

Connected With S.B. Civil Contempt Petition No. 790/2018

Balbir Singh Khandekar S/o Late Shri Ramdhan Khandekar, R/o 35/201, Shikarpura Road, Pratap Nagar, Tehsil Sanganer, Jaipur, Rajasthan.

----Petitioner Versus

1. Ravi Shanker Agarwal, The Secretary, Rajasthan Small Industries Corporation Ltd, Udyog Bhawan, Tilak Marg, C-Scheme, Jaipur Rajasthan-302005

2. Giri Raj Singh, Managing Director, Rajasthan Small Industries Corporation Ltd, Udyog Bhawan, Tilak Marg, C-Scheme, Jaipur Rajasthan-302005

3. State Of Rajasthan Through Principal Secretary, Department Of Industries And Commerce, Government O, Secretariat, Jaipur.

                                                                 ----Respondents


For Petitioner(s)           :    Mr. Saransh Saini through VC
For Respondent(s)           :    Mr. R.P. Garg through VC


             HON'BLE MR. JUSTICE SUDESH BANSAL
                                       Order

Reserve on                                              : January, 19th 2022
Pronounced on                                           : January, 25th 2022

1. The Contempt Petition No.398/2012 has been filed, alleging

non-compliance of final order dated 08.08.2008 passed by this

Court in S.B. Civil Writ Petition No.2672/1999 whereby

(2 of 9) [CCP-790/2018]

termination order of petitioner from his services dated 18.04.1996

was set aside, allowing his reinstatement and petitioner was held

entitled only for notional benefits for intervening period. However,

petitioner's services was deemed to be continued for other

benefits such as increments, revision of pay, seniority and

promotion etc. Order dated 08.08.2008 was affirmed by Division

Bench vide order dated 04.05.2012 and order of reinstatement of

petitioner was uphold, though, respondent-employer was granted

liberty to proceed with further enquiry in accordance with law after

removing technical defects. Accordingly, respondents proceeded

further enquiry and passed another punishment order dated

12.02.2016 to remove petitioner from his services by upholding

previous punishment order dated 18.04.1996. Petitioner filed

another Writ Petition No.11620/2016, assailing subsequent

punishment order dated 12.02.2016 which was allowed vide order

dated 29.08.2017. The punishment order dated 12.02.2016 to

remove the petitioner from service was quashed and set aside and

respondents were directed to pay arrears of salary and allowance

payable to petitioner and also pay him all retiral benefits in

accordance with Rules and Regulations as if there had been no

disciplinary proceedings initiated and no punishment order passed

against petitioner.

2. Another Contempt Petition No.790/2018 has been filed by

petitioner, alleging non-compliance of final order dated 29.08.2017

passed by this Court in S.B. Civil Writ Petition No.11620/2016.

3. In both contempt petitions, respondents have filed reply

contending that due compliance of order dated 08.08.2008 and

order dated 29.08.2017 have been made. Relevant orders passed

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by respondents-Authorities in compliance of aforesaid orders of

High Court, have also been placed on record.

4. In both the contempt petitions, issue of reinstatement of

petitioner in service and payment of salary, allowance, pay

fixation, seniority etc. is common and parties are same. Therefore,

with the consent of both parties, contempt petitions have been

heard together and are being decided by this common order. After

hearing arguments of counsel for both parties and perusing

material on record, following undisputed facts have been emerged

that petitioner was appointed as Class-IV employee in office of

Rajasthan Small Industries Corporation Ltd. on 14.10.1977 and

was promoted on the post of Junior Sales Assistant. Petitioner was

served with a charge-sheet dated 30.06.1995 and in

consequences thereof, petitioner was removed from service vide

order dated 18.04.1996. The order of removal of petitioner from

service dated 18.04.1996 was quashed and set aside by this Court

vide order dated 08.08.2008 in S.B. Civil Writ Petition No.

2672/1999 which was affirmed by the Division Bench vide order

dated 04.05.2012. Thereafter, petitioner was reinstated in service

w.e.f. 14.05.2012 and has been retired from service on attaining

age of superannuation w.e.f. 31.12.2014. As the Division Bench

vide order dated 04.05.2012 had allowed the respondents-

employer to proceed with the enquiry after removing technical

defects in accordance with law, respondent-Corporation, apart

from continuing enquiry pursuant to previous charge-sheet dated

30.06.1995, issued a fresh charge-sheet dated 21.03.1996 and

proceeded enquiry for the both charge-sheets. Finally, outcome of

enquiry resulted in passing of order dated 12.02.2016 whereby

petitioner was ordered to be removed from service upholding

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previous punishment order of removal dated 18.04.1996. It is not

in dispute that before passing punishment order dated

12.02.2016, petitioner has retired from service w.e.f. 31.12.2014.

The punishment order dated 12.02.2016 was also set aside by this

Court vide order dated 29.08.2017, passed in S.B. Civil Writ

Petition No.11620/2016.

5. The issue before this Court in both contempt petitions is as

to whether respondents are guilty of willful and deliberate non-

compliance of orders dated 08.08.2008 and 29.08.2017 passed by

this Court and are liable to be punished?

6. In order to examine aforesaid issue, operative portion of

both orders dated 08.08.2008 and 29.08.2017 is being

reproduced herein.

7. The order dated 08.08.2008 has held as under:-

"In the result, the writ petition succeeds and the order of penalty and removal of the petitioner from service dated 18.04.1996 is set aside and the order by which the appeal of the petitioner was dismissed dated 19.09.1998 is also set aside. Since the petitioner was removed a decade ago and this matter has remained pending for more than nine years, owning to which the petitioner was not required to discharge his duties, all this time, he would therefore be only entitled to notional benefits for the intervening period. In so far however other benefits are concerned such as increments, revision of pay, seniority and consideration of promotion etc., the petitioner would be deemed to be continuous in service and this period of service would held valid for the purpose of all these benefits."

8. The order dated 29.08.2017 has held as under:-

"14.In view of what has been discussed herein above, the order impugned passed by the respondents dated 12/02/2016 is quashed and set aside and the respondents are directed to pay arrears of salary and allowance payable to the petitioner and also pay him all retiral benefits in accordance with Rules and Regulations as if their had been no disciplinary proceedings initiated and no punishment order passed

(5 of 9) [CCP-790/2018]

against him therein. Compliance of this order shall be made by the respondents within three months of receipt of certified copy of this order."

9. It is contended by respondents that soon after affirmation of

order dated 08.08.2008 by the Division Bench vide order dated

04.05.2012, petitioner was immediately reinstated in service on

the post of Junior Sales Assistant vide order dated 14.05.2012

(Annexure R-2) and notional fixation of his pay under revised pay

scales was made, notional annual grade increments were paid and

his pay was revised accordingly on the date of joining (Annexure

R-3, Annexure R-4 & Annexure R-5), then vide office order dated

04.01.2013 (Annexure R-6) petitioner was given periodical

notional increment. As per order, petitioner was in pay scale of

3200-85-4900 and as on 08.09.1998 he has drawn pay of

Rs.3795/-, therefore, increment was given w.e.f. 08.09.1999 for

future pay of Rs.3880/-. Further revised seniority list was also

issued on 26.07.2013 (Annexure R-10). Since order dated

08.08.2008 is very clear that petitioner is entitled only to notional

benefits for intervening period, therefore, for intervening period

from the date of removal to date of reinstatement in service,

notional benefits have been accorded and accordingly, order dated

08.08.2008 has been complied with in letter and spirit.

10. It is further contended that order dated 29.08.2017 has also

been complied with by the Corporation and in compliance thereof,

Corporation has passed an order dated 05.12.2018 for fixation

and payment of amount of salary. A copy of order dated

05.12.2018 has placed on record in contempt petition

No.790/2018 as Annexure R-1. Order dated 05.12.2018 has

further been amended vide order dated 29.01.2019 and finally,

salary and allowances payable to petitioner from the period

(6 of 9) [CCP-790/2018]

08.08.2008 to 31.12.2014 have been paid. The amended order

dated 29.01.2019 is placed on record as Annexure P1. Leave

encashment, gratuity payment have also been paid. It is

contended that the petitioner has also received his due salary,

allowances and other retiral benefits under protest.

11. It is contended that the petitioner was removed from service

w.e.f. 18.04.1996 and his order of removal was set aside by

learned Single Judge vide order dated 08.08.2008, thereafter,

petitioner was reinstated on 14.05.2012 and has retired from

service w.e.f. 31.12.2014. Therefore, actual salary and monetary

benefits for the period from 08.08.2008 to 31.12.2014 have been

paid and for the period prior to 08.08.2008, notional benefits have

been accorded apart from extending benefits of seniority, revision

of pay, grant of increment and selection scale etc. Thus, as far as

order dated 29.08.2017 is concerned, the same has also been

complied with and no non-compliance either for order dated

08.08.2008 or for order dated 29.08.2017 remains due on the

part of respondents. It is contended that if there is any delay in

making compliance of orders, same is not deliberate and

intentional but just because of procedural reasons at the

departmental level and may not be treated as contumacious

conduct of respondents.

12. Learned counsel for respondent fairly submits that in

backdrop of aforesaid compliance, the delay, if any, may be

apologized.

13. From the side of petitioner, it has not been disputed that he

was reinstated in service w.e.f. 14.05.2012 and has retired from

service w.e.f. 31.12.2014. It has also not been disputed that

arrears and allowances from 08.08.2008 to 31.12.2014 have been

(7 of 9) [CCP-790/2018]

paid to the petitioner. However, petitioner claims that he is entitled

for actual salary, allowances and monetary benefits for period

from date of removal i.e. 18.04.1996 until quashing of his removal

order by High Court vide order date 08.08.2008.

14. Learned counsel for petitioner submits that although in

previous order dated 08.08.2008, only notional benefits were

allowed to petitioner prior to 08.08.2008. Nevertheless in

subsequent order of High Court dated 29.08.2017, it has been

observed that respondents are directed to pay arrears of salary

and allowances payable to petitioner and also pay him all retiral

benefits in accordance with Rules and Regulations as if there had

been no disciplinary proceedings initiated and no punishment

order passed against him therein, thus, petitioner is entitled for

salary and actual monetary benefits for period prior to 08.08.2008

as well.

15. The order dated 08.08.2008 has attained finality and as per

this order, before the period from 08.08.2008, petitioner was held

entitled only for notional benefits and not for actual monetary

benefits. Respondents have already accorded notional benefits to

the petitioner for period prior to 08.08.2008 by giving pay

increment, selection scales and pay fixation under the revised

scales, apart from giving seniority to petitioner treating him in

service w.e.f. date of removal i.e. 18.04.1996. As per order dated

04.01.2013 (Annexure R-6) notional increment has been given

upto 08.08.2008 and thereafter from 08.08.2008 until retirement

of petitioner on 31.12.2014, actual monetary benefits including

salary and allowances have been paid.

16. A close and critical reading of order dated 29.08.2017

reveals that as per this order, respondents were directed to pay

(8 of 9) [CCP-790/2018]

arrears of salary and allowances as payable to petitioner. The

directions may not be misconstrued as that by passing this order,

the High Court has superseded previous order dated 08.08.2008

and in supersession to previous order dated 08.08.2008, the High

Court has directed respondents to pay all salary and allowances

from date of removal of petitioner in service whereas once it is

much clear in the order dated 08.08.2008 that prior to this date,

petitioner would be entitled only for notional benefits for

intervening period. This Court is of view that order dated

08.08.2008 and subsequent order dated 29.08.2017 are

supplementary to each other. Thus, the claim of petitioner that in

view of compliance of order dated 29.08.2017 he is entitled for

salary, allowances and actual monetary benefits for period prior to

08.08.2008 as well is preposterous and cannot be accepted.

17. The Hon'ble Supreme Court, in the case of Anil Ratan

Sarkar Versus Hirak Ghosh reported in [(2002) 4 SCC 21]

has opined that 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.

In para No.15 of the aforesaid judgment following

observations have been made:-

"15. It may also be noticed at this juncture that mere disobedience of an order may not be sufficient to amount to a "civil contempt" within the meaning of Section 2(b) of the Act of 1971 the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act and lastly, in the event two interpretations are possible and the action of the alleged contemnor pertains to one such interpretation--the act or acts cannot be ascribed to be otherwise contumacious in nature. A doubt in the matter as regards the wilful nature of the conduct if raised,

(9 of 9) [CCP-790/2018]

question of success in a contempt petition would not arise."

18. As discussed hereinabove, both orders dated 08.08.2008 and

29.08.2017 have been complied with by respondents if not in

letter and spirit but atleast substantially. It would not be justified

to treat the conduct of respondents contumacious, albeit,

compliance of both orders have been made by them, much less

the respondents may not be held guilty of willful and deliberate

non-compliance of both orders. As far as delay is concerned, this

Court accepts apology tendered on behalf of respondents looking

to the pendency of litigation between parties for a longer period.

19. Therefore, both contempt petitions do not survive further

and are hereby dismissed. Notices of contempt issued against

respondents stand discharged.