Sankar Lal Mehra v. Chief Engineer — 1988 DIGILAW 6 (GAU)

The petitioner Sankar Lal Mehra was appointed temporarily to officiate as Senior Draftsman with effect from 18.12.62 in the N. F. Railway. The appointment was against a regular vacancy. But, by a notice dated 31.1.68. the petitioner was informed that his service would terminate on 1 3.68. The petitioner challenged the termination order in this Court in Civil Rule No. 46/68 under Article 226 of the Constitution. The matter was heard by a Division Bench of this Court consisting of two Hon’ble Judges. In that writ petition, the ,question at issue was whether the petitioner was automatically confirmed after the expiration of the period of probation. There was a difference of opinion on the question between the two Hon’ble Judges. Therefore, the matter was referred to a third Hon’ble Judge. The third Hon’ble Judge held that the petitioner was automatically confirmed after the expiration of the period of probation. Therefore, the opinion of the majority was that, although there was no order of confirmation, the petitioner became confirmed on the expiration of the period of probation fixed by the rule. Thereafter, on 10.4.69 the Division Court passed the following orders : "In view of the majority decision the petition is allowed the respondents will not give effect to the impugned order dated 31.1.68 terminating the services of the petitioner and the petitioner will be deemed to have been in service." Against the order of this Court the railway administration filed an appeal, Civil Appear No. 1042/70, in the Supreme Court of India. The Supreme Court dismissed the appeal on 12.3.81 affirming the judgment of this Court. 3. The present petition for initiating proceedings for contempt was filed on 8 9 81 after the disposal of the appeal by the Supreme Court stating that the opposite parties have wilfully disobeyed the judgment and order of this Court, which have been affirmed by the Supreme Court. It is important to note that, before the disposal of the appeal by the Supreme Court, the petitioner wrote a number of letters to the railway authorities to implement the judgment and order of this Court as it was not stayed by the Supreme Court. The railway authorities did not take any action on those letters. After the disposal of the appeal by the Supreme Court, on 22.4.81 the railway authority provisionally confirmed the petitioner with effect from 1.1,79. The railway authorities did not take any action on those letters. After the disposal of the appeal by the Supreme Court, on 22.4.81 the railway authority provisionally confirmed the petitioner with effect from 1.1,79. The petitioner submitted again another representation dated 24.4.81 to the General Manager, N. F. Railway to implement the judgment/order of this Court which has been merged in the judgment of the Supreme Court and to grant consequential benefits within 60 days of receipt of the representation. 4. Mr. A. R. Baruah, the learned counsel for the opposite parties has raised a preliminary objection that under section 20 of the Contempt of Courts Act, 1971 no proceeding for contempt can be initiated after lapse of 18/19 years. To support this contention he has relied on AIR 1980 Gujarat 191, Dineshbhai V. Kripalu Co-op. Housing Society and AIR 1969 Delhi 137, Nand Kishore V. Delhi Corporation. 4A. Section 20 of the Contempt of Courts Act provides: "No court shall initiate any proceeding for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.” 5. On 9.9.81, on the motion of the petitioner for initiating proceedings for contempt, this Court passed the following order : "Heard Mr. A. R. Borthakur, learned counsel for the petitioner. Let a Rule issue calling upon the respondents to show cause as to why they should not be dealt with under the Contempt of Court Act, 1971, for the alleged violation of the order dtd. 10.4.69 of this Court in the Civil Rule No. 46 of 1968, confirmed by the Supreme Court on 12.3.81 in writ Appeal No. 1042 of 1970 as prayed for or why such further or other orders should not be passed as to this Court may seem fit and proper. 6. The above quoted passage shows that this Court has already initiated proceedings for contempt on 9,9 .8l. The question which therefore arises is whether section 20 is attracted in the present case. 7. The appeal before the Supreme Court was continuation of the writ proceedings of this Court and the order of this Court has beet merged with/into the order pf the Supreme Court. Therefore, the order to be executed, is the order of the Supreme Court. The question which therefore arises is whether section 20 is attracted in the present case. 7. The appeal before the Supreme Court was continuation of the writ proceedings of this Court and the order of this Court has beet merged with/into the order pf the Supreme Court. Therefore, the order to be executed, is the order of the Supreme Court. The Supreme Court disposed of the appeal on 12.381 and this Court initiated the proceedings for contempt on 9.9.81 within a year of the order of the Supreme Court. The date on which the contempt is alleged to have been committed after the decision of the Supreme Court or the la> date of the alleged contempt was on 22.4.81 confirming the petitioner with effect from 1.1.79 or on 24.6.81 (after 60 days of the above mentioned notice dated 24.4.81). For these reasons, in my judgment, the provisions under section 20 is not attracted in the present case. On the view of the case which I have found, it is not necessary to consider the decisions referred to me by the learned counsel for the opposite parties. 8. The next question which arises for consideration is whether the opposite parties have committed a contempt of court. The learned counsel for the petitioner has submitted that this Court has given dear findings that the petitioner became confirmed automatically against a regular vacancy on the expiration of the period o probation fixed by the rule and the Supreme Court has confirmed those findings The opposite parties, till date, have not complied with the judgment of this Court or the Supreme Court and as such, the opposite parties have wilfully disobeyed the order of this Court and/or the Supreme Court. The learned counsel for the opposite parties contended that the prayer for the petitioner in the writ petition, was to allow him to continue in service as Senior Draftsman and not to give effect to the order of termination dated 1.1.68. This Court granted the relief sought, which was affirmed by the Supreme Court. Accordingly, the petitioner was reinstated in his post. There was no direction from the Court that he should be confirmed from a specific date. Therefore, the opposite parties have not violated the order of this Court and/or of the Supreme Court. This Court granted the relief sought, which was affirmed by the Supreme Court. Accordingly, the petitioner was reinstated in his post. There was no direction from the Court that he should be confirmed from a specific date. Therefore, the opposite parties have not violated the order of this Court and/or of the Supreme Court. 9 This Court has already held that the petitioner became confirmed automatically after the expiration of the period of probation, and that the appointment of the pensioner as Senior Draftsman was against a regular vacancy. The Supreme Court while dismissing the appeal observed that the conclusion reached by the High Court was in accordance with the decision of the Supreme Court in Baleswar Dass Vs. State of U.P. AIR 1981 SC 41 . 10. In Baleswar case, the Supreme Court has held that when Engineers were appointed to temporary posts but after fulfilment of all the tests for regular appointment, including consultation with the Public Service Commission, they must be held to be appointed in a substantive capacity. Merely because the person was a temporary appointee it could not be said that he was not substantively appointed, if he fulfilled the necessary conditions for regular appointment such as probation and consultation with the Public Service Commission, etc. 11. Therefore, the finding of this Court as regards the automatic confirmation has been approved by the Supreme Court. On this ground alone, this Court has held that the termination was illegal. In the present case, there was however ho positive direction that the petitioner should be confirmed from a specific date. But a wilful disobedience to any judgment is also civil contempt. A judgment is statement of facts given by a judge of the grounds of an order deciding a controversy which affects the right of one of the parties. In the case on hand, the controversy was whether the petitioner had been automatically confirmed after the expiration of the period of probation. The question had been decided in favour of the petitioner, and it was that ground alone, this Court quashed order of termination. In such a situation the confirmation of the petitioner with effect from 1.1.79 (that was also provisionally" was against the judgment of this Court passed on 104.69 12. The next question which arises is whether the opposite parties have committed a contempt of court. In such a situation the confirmation of the petitioner with effect from 1.1.79 (that was also provisionally" was against the judgment of this Court passed on 104.69 12. The next question which arises is whether the opposite parties have committed a contempt of court. Under section 2 of the Contempt of Courts Act, 1971 ‘civil contempt’ means Wilful disobedience to any judgment, decree, direction, order, writ or other processes of a Court or wilful breach of undertaking given .to the Court In the context of the present case, ii is to be examined whether the respondents have willfully disobeyed the judgment and order of this Court, which have been affirmed by the Supreme Court 13. A party being proceeded against, in fact, did not intend to disobey the judgment and order, but conducted himself in accordance with his interpretation of the judgment and/or order the party cannot be held to have wilfully disobeyed the judgment and order. Therefore, the question is whether the opposite parties have understood the judgment and order of this Court affirmed by the Supreme Court in a particular manner and have conducted themselves in accordance with such a construction. If the materials on record did not support such state of affairs the opposite parties cannot be excused. 14. Wilful means conscious deliberate, intention, or voluntary. One of the explanations given by the opposite’ parties. is as follows. On receipt of the certified copy of the order of the High Court, the petitioner was allowed to resume his duty and was treated as a member of the permanent staff for all practical purposes. The petitioner was given the benefit of the sentient from the date of appointment, viz. 18 1.2.62 and he was promoted1 as which Draftsman in the scale of Rs. 700-900/-. But the order for confirmation of the petitioner could not be issued for want of permanent post as the posts of Senior Draftsman and Chief Draftsman were upgraded on percentage basis under Railway Board’s order communicated under letter dated 1.1.79. On 1.1.79, nine permanent posts of Senior Draftsman were available for confirmation and promotion As soon as the posts were available, the petitioner and eight others were provisionally confirmed with effect from 1.1.79. 15. The petitioner disputed that he was given the benefit of seniority for all practical purposes by the opposite parties. On 1.1.79, nine permanent posts of Senior Draftsman were available for confirmation and promotion As soon as the posts were available, the petitioner and eight others were provisionally confirmed with effect from 1.1.79. 15. The petitioner disputed that he was given the benefit of seniority for all practical purposes by the opposite parties. Be that as it may the petition can be disposed of on other ground. In view of the findings of this Court that the appointment of the petitioner was made against a substantive vacancy, and that the petitioner had been confirmed automatically on the expiration of the period of probation, in my judgment, no order for confirmation was required to be issued by the railway administration and the petitioner is or was entitled to consequential benefits from the date he was automatically confirmed. If any order was required to be issued by the railway authority confirming the petitioner, it was a mere formality. However, the railway authority was under the impression that a formal order was to be issued for the confirmation after the petitioner was reinstated, but there was no post in which the petitioner was to he confirmed as the substantive post against which the petitioner was to be confirmed was not available (another person probably had been confirmed in that post). Although the petitioner denied the statement of the opposite parties that the petitioner was given the benefit of seniority for all practical purpose, the statement is against the makers, namely, the opposite parties. Considering the over-all circumstances of the case, the opposite parties did not intend to disobey the judgment of this Court. Therefore, I am of the view that there was not wilful disobedience to the judgment of this Court, and that the opposite parties have not committed contempt of Court. 16. I have held that the opposite parties are not guilty of contempt of Court as they conducted themselves in accordance with their interpretation of the judgment. But it is made clear that the interpretation made by the railway administration is/was not correct for the reasons stated above and the petitioner is entitled to all the consequential monetary and service benefits from the date of his automatic confirmation. Now, I hope and trust that railway authority will faithfully comply with the judgment of this Court, which had been affirmed by the Supreme Court. 17. Now, I hope and trust that railway authority will faithfully comply with the judgment of this Court, which had been affirmed by the Supreme Court. 17. I am not dealing with the demands made by the petitioner in his representation dated 24.4.81 in this proceedings for contempt, It is left open. With the said observations and directions, the petition is disposed of. Interim order, if any, stands vacated.