Mr. P.K. Pal vs Mr. S.S. Dey
2021 Latest Caselaw 685 Tri

                              Page 1 of 12


                      HIGH COURT OF TRIPURA
                            AGARTALA

                          Cont. Cas (C) No.26/2021

For Petitioner(s)            : Mr. P.K. Pal, Advocate.
                               Mr. S. Datta, Advocate.
                               Mr. S. Baidya, Advocate.

For Respondent(s)            : Mr. S.S. Dey, Advocate General.
                               Mr. Debalay Bhattacharjee, GA.
                               Mr. Partha Saha, Advocate.



      HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
          HON'BLE MR. JUSTICE ARINDAM LODH

                                ORDER

08/07/2021.

(Akil Kureshi, CJ).

In very few cases Courts pursue contempt case further once the

respondents have purged themselves of the contempt. However, this case

presents an extremely disturbing scenario which pursued us to depart from

normal practice. The father of the petitioner was a Constable in State

service. He died on 06.06.2001, when the petitioner was minor. The

petitioner applied for Government job under Die-in-Harness Scheme on

19.09.2012 after attaining majority. His application was rejected by the

Government by an order dated 24/25.05.2013. The petitioner challenged

this decision before the Single Judge by filing W.P. (C) No.270 of 2013.

The petition was dismissed by a judgment dated 23.04.2014. The petitioner

filed Writ Appeal No.45 of 2014 against the said judgment of the Single

Judge. Writ Appeal was allowed by a judgment dated 22.11.2018 in

following terms:

"7. Under these circumstances, we are constrained to hold that the action of the State in rejecting the petitioner's application on the ground of delay to be unsustainable in law and as such, quash the impugned order dated 24/25th May, 2013 (Annexure-10 to the writ petition) with a further direction to the State Authorities concerned to consider the petitioner's application afresh in accordance with law, more so, in view of the observations made here-in-above. It stands clarified that we have not adjudicated the petitioner's right of entitlement of the benefits under the scheme, which issue is left open to be considered and decided by the authorities. However, we clarify that the issue of limitation would not come in the way of such decision.

8. Needful shall positively be done within a period of 3(three) months from the date of production of copy of this judgment/order.

Impugned order dated 23.04.2014, passed in WP(C) No.270 of 2013, titled as Shri Subham Dey Vrs. The State of Tripura & Ors. stands modified accordingly." (emphasis supplied by us)

Pursuant the said judgment of the Division Bench, the authorities

undertook the exercise of considering the application of the petitioner for

compassionate appointment. By a fresh order dated 16.01.2019, his request

was once again rejected on the ground that he was not eligible for

appointment under Die-in-Harness Scheme as he was aged less than 17

years on the date of death of his father. The petitioner thereupon filed a

Contempt Case (C) No.27 of 2019 and contended that the consideration by

the authorities of his request for compassionate appointment was opposed

to the decision in Writ Appeal No.45 of 2014. This Contempt Petition was

disposed of by a Division Bench by a judgment dated 02.12.2019. The

Court was of the opinion that the order of the authorities dated 16.01.2019

suffered from inherent lack of understanding of the decision of the

Division Bench and was contrary to the directions. It was further observed

that permitting the argument of the authorities to prevail would amount to

ignoring the decision of the Division Bench dated 22.11.2018 in the Writ

Appeal. The Court, instead of taking further action in contempt directed

the respondents to recall the order dated 16.01.2019 and pass a fresh order

bearing in mind the observations made by the Division Bench in the

judgment dated 22.11.2018 as explained in the order. Two months were

granted for completing this exercise. The relevant portion of the contempt

order reads as under:

9. Permitting any such argument to prevail, would amount to ignoring the decision of Division Bench of this Court dated 22.11.2018. We have reproduced the relevant portion of the judgment of the learned Single Judge which came to be reversed by the Division Bench. In fact, the learned Single Judge had accepted the Government point of view that since the present petitioner, the applicant for appointment on compassionate cases was not over 17 years of age on the date of death of his father, his application was rightly rejected. This decision was not confirmed

by the Division Bench. While reversing the decision, the Court took into account the fact that the applicant was barely 7 years old when his father expired. His application which was filed within one year from his attaining majority, was within time and could not be rejected on the ground of limitation and had to be decided on merits. When the Court, therefore, directed the Government to consider his application on merits, the respondents did not have an option to reject it on the ground that the scheme did not cover a case of a dependant of a Government servant who was below 17 years of age on the date of the death of the Government servant. If we permit the Government this argument, it would virtually amount to allowing the respondents to overrule the decision of the Division Bench and bring through back door the original ground for rejection of the petitioner's application which was not accepted by the Division Bench. The Division Bench had held that the application filed by the petitioner was within time and necessarily, therefore, it had to be decided on merits.

When the Court, therefore, required a decision on merits from the Government, it had to be a decision whether as per the parameters laid down in the scheme, the financial condition of the family and other relevant aspects justified grant of appointment on compassionate basis. Without undertaking any such exercise, his application has been rejected on the ground that it was not maintainable.

10. We would have taken further action on this contempt petition against the respondent No.1. However, instead we allow him to pursue the contempt. In the result, we direct the respondents to recall the said order dated 16.01.2019 and pass a fresh order bearing in mind the observations made by the Division Bench of this Court in the order dated 22.11.2018 as explained by this Court

in the present order. This fresh exercise shall be completed within a period of 2(two) months from the date of receipt of a copy of this order.

Contempt petition is disposed of." (emphasis supplied)

A copy of this judgment dated 02.12.2019 was forwarded by the

advocate of the petitioner to the Additional Secretary to the Government of

Tripura under the communication dated 24.12.2019. The authorities did

not decide the issue within the time permitted in the said contempt order

dated 02.12.2019. The petitioner, therefore, was compelled to file a fresh

Cont. Case (C) No.33 of 2020. This was disposed of by a short order dated

20.01.2021. In the said contempt proceedings, the lame excuse for not

carrying out the directions of the Court offered was that the authorities had

filed a review petition. Review petition was dismissed on the same day. In

the order dated 20.01.2021 in the contempt case it was, observed that mere

filing of the review petition would not permit the respondents to delay

carrying out the directions of the Court unless extension of time has been

prayed and granted or the order in question is stayed. However, yet again

reposing faith in the State administration not disregarding the Court's

orders and directions with impunity, the contempt petition was disposed of

expecting the respondents to carry out the earlier directions within one

month.

First response after the said order dated 20.01.2021 was in form of a

letter dated 10.03.2021 from the Superintendent of Police, West Tripura to

the petitioner asking him to provide certain documents. The advocate of

the petitioner supplied all documents under a communication dated

11.03.2021. Once again, there was deafening silence. The petitioner,

therefore, was compelled to file third contempt petition in succession

which is the present one.

After making brief reference to the background history of the

present proceedings, while issuing notice on 23.06.2021, we had made a

few significant observations as under:

"Father of the petitioner expired on 6th June, 2001. More than

20 years later the petitioner is still looking for government

employment as per the government scheme as explained by the Court.

If the allegations made in the contempt petition are correct in entirety,

it presents a very grim situation. Allegations of contempt are always

taken very seriously by the Court. When such allegations surface in

the same case third time, it must and does perturb us. We have briefly

recorded this background while issuing notice to convey to the

respondents the alleged contemnors that we are running out of

patience". (emphasis supplied)

No more emphatic expression of annoyance and impatience of the

Court to the utter lethargy and inaction of the administration could be

found in an ex parte order. We fell short of issuing a direction that the

petitioner should be appointed forthwith since at the ex parte stage, we

wanted to ascertain from the respondents if there is any inherent reason

which goes to the root of the matter because of which such appointment

cannot be made. Short of any such strong ground, the unsaid massage in

the said order was that the administration better come back on the

returnable date of the notice with an appointment order and not a mere

explanation of administrative delays. Unfortunately, our order was not

understood or was deliberately misunderstood. Whatever be the reason, the

respondents on the returnable date, came up with an affidavit-in-reply.

Contents of the affidavit are more disturbing than soothing. It is stated that

the matter was referred to the Finance Department for concurrence for

compliance of the order dated 20.01.2021 under a Memorandum dated

05.5.2021. In a case where the administration was facing a direction for

completion of the process within one month which was issued in second

contempt proceedings, the first worthwhile step that the Home Department

took for compliance of the direction was more than 4 months after passing

of the order. It is not necessary to burden this order with utter frivolousness

of the explanations offered by the respondents in the said affidavit. Suffice

to record that the respondents asked for further time to complete the

process. The affidavit-in-reply is remorseless. We have not detected a

single sentence where the deponent has offered his apology unconditional

or otherwise. The explanation of the Government Advocate that the

affidavit was prepared in a hurry because of shortage of time is completely

unacceptable. It is not as if every other day Court shows such irritation and

passes such strong orders calling upon the administration to explain its

serious conduct. 14 days if at all, was too long to prepare a proper reply.

The affidavit instead of mitigating the contempt compounds it.

The saga of disregard to the Court's directives does not stop here.

Yesterday, when the contempt petition was called out, we asked the

Government Advocate to come back with the instructions that the

petitioner shall be given an appointment order before 4 O'clock. Either the

Government Advocate failed to convey the true force of our sentiments or

the respondents misjudged our seriousness. The Government Advocate

reverted back relying a "counter offer" to appoint the petitioner within 7

days. We have no inhibition in stating that upon being conveyed this stand

of the respondents, be coerced them into passing the appoint order

yesterday itself. Accordingly, they have produced an order of appointment

to the petitioner dated 07.07.2021.

We are compelled to record these events because we feel that in the

present case, the administration has treated the orders and directives of the

Court with distain. More sacrosanct to this Court than passing a judgment

is its implementation. If the judgments and directions that the Court passes

are not implemented in its true letter and spirit, it would become mockery

of justice. Time and again we come across instances of the Government

machinery not complying Court's orders in time. This unfortunate situation

arises because there is no internal audit system by which the Government

can ascertain as to in how many cases the Government officers are raising

frivolous issues, filing needless petitions or appeals, disregard Court's

orders and directions and invite contempt proceedings. This luxury the

respondents can afford because the litigation is not defended at their cost

but at public cost. Every day of delay does not harm the respondents but

tests the patience of the litigant and some times, comes the stage his energy

and resources run dry. Litigation is dragged endlessly till out of sheer

exhaustion and despair he stops pursuing his cause. In a case, where an

unemployed youth, who lost his father at the age of 7 is looking for

Government employment, he has been forced to file 5 proceedings before

the High Court all at his cost. The respondents perhaps cannot understand

and surely do not share his agony because they have a fixed pay day unlike

the petitioner and all their actions, inactions, deeds and misdeeds are

defended at the public cost. Perhaps sitting in their air-condition chambers;

they have lost their capacity to understand what is hunger. We are

conscious that the present two respondents merely represent the executive

as a class and may have been in charge of the respective positions not

during the entire period of this litigation. These observations therefore are

meant for the administration in general and not against these two

respondents personally.

One more aspect we need to highlight is that our legal system

recognizes finality of outcome of litigation. The judgment, in the view of

the judgment debtor may be right, wrong or in different, it is binding inter-

party. The judgment debtor may be disappointed by the outcome of the

legal proceedings; however, once such outcome achieves finality, the

decision of the Court must have its full effect. It does not matter whether

the judgment debtor is a private individual or a Government organization.

The law is equal for all. The judgment of the Division Bench in Writ

Appeal No.45 of 2014 achieved finality. The respondents had no option

but to implement the decision.

The petitioner is an individual of no eminence. For the executive

class, he is of no significance. He does not represent a vote bank. For the

political class he is of no special value. That still does not mean that the

law will not help him if the law is on his side and that is where the role of

the Court becomes paramount.

We now come to the question of what final order should be passed.

The petitioner has lost three precious years to render service and earn

wages. Courts are reluctant to provide ideal wages. No work no pay

principle is often applied so that the public exchequer does not bleed and a

person, who has not rendered service, may not have to be paid ideal wages.

However, nothing prevents us from at least restoring the time lost by

predating the appointment of the petitioner for the limited purpose of his

seniority and cool off period for being brought out to regular pay scale as

per the prevailing Government policy. The petitioner also must be

compensated for cost of litigation some of which at least he was wrongly

and needlessly dragged into by the administration.

Under the circumstances, the petition is disposed of with following

directions:

(i) The order of appointment of the petitioner shall be effective

from 31.01.2019, a date we have chosen because the Division

Bench in the Writ Appeal judgment dated 22.11.2018 had

given the authorities 3 months time from the date of receipt of

the copy of the judgment to complete the process of

reconsideration of the application of the petitioner.

(ii) The competent authority shall pass a consequential order

giving deeming effect to the appointment of the petitioner.

(iii) This deemed date of appointment will be with all

consequential benefits except for actual wages which shall be

payable to the petitioner from the time he starts discharging

his duties.

(iv) The respondents together (in their official capacity and not in

personal capacity) pay to the petitioner a sum of Rs.50,000/-

(Rupees Fifty thousand) by way of cost latest by 30.07.2021.

The petition disposed of accordingly. However, the respondents

shall produce the proof of compliance of directions contained in this order

before the Registry and the Registry shall place such documents before this

Bench for verification of compliance on 02.08.2021. Do we need to state

that any further non-compliance would not be appreciated? Hope not.

  (ARINDAM LODH), J                             (AKIL KURESHI), CJ




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