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2000 DIGILAW 532 (AP)

M. Subbadasu v. Nagabhushan Rao, Executive Director, APSRTC, Cuddapah

2000-07-24

BILAL NAZKI

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BILAL NAZKI, J. ( 1 ) THIS Court passed the following order in writ Petition No. 18379 of 1995 on 11th march, 1997:"the petitioner is a Junior Assistant working under the third respondent. In this writ petition he has sought the relief seeking rectification of seniority list concerning him to count the same from 3-9-77 instead of 10-7-78 as against respondents 2 and 3 and for declaration that he is entitled to selection Grade Post on completion of 12 years from 3-9-77 with consequential benefits. Similar the petitioner in W. P. 18406/95 being a junior Assistant challenged the seniority list on similar grounds. The writ petition, thus had the similar question as in the present case, determining the aspect of seniority and service conditions of the present petitioner in as much as the petitioner in that writ petition. On merits that writ petition was allowed by this court on 31-1-97 and the seniority fixed in regard to the petitioner therein was rectified to place him at the appropriate place by quashing the administrative order passed by the same authorities. The same authorities were directed to review and refix the seniority of the petitioner therein and the persons shown above him after giving reasonable opportunity to all the persons who are going to be affected with such revision. The relevant records and the judgment of that writ petition are put up as directed by this court to-day. Therefore, the learned advocate for the petitioner has suggested that in view of the common questions involved in the other writ petition as above, the present writ petition may also be disposed of in similar terms. The learned Standing counsel for the respondents is not denying such a covered aspect of the matter in the two writ petitions followed by a decision thereon in the other writ petition. Under the circumstances, the writ petition is allowed with the following observations and directions: the seniority of the petitioner in his service and the post held as on 3-9-1977 shall be reckoned from that date instead of 10-8-78 and his seniority shall be fixed accordingly subject to other conditions and with the comparative seniority of similarly placed employees as on the relevant date. The present seniority of the petitioner fixed shall, thus, stand quashed. The present seniority of the petitioner fixed shall, thus, stand quashed. The respondents 2 and 3 shall be entitled to review the seniority of the petitioner and the persons shown above him in the light of the observations made above after giving reasonable opportunity to all the persons who are going to be effected on such revision and this shall be completed within three months from the date of communication of a copy of this order. No costs". Now, a contempt petition has been filed alleging that the respondents have not complied with the order of this Court. It is contended that although the respondents had filed Writ Appeal No. 1141 of 1997 and the Writ Appeal was entertained but no stay was granted, therefore, there was no justification in not implementing the order of this Court. ( 2 ) NOTICE was issued and counter has been filed. In the counter it is stated that the respondents filed an appeal against the order of this Court which was admitted on 12-11-1997 and the Court was inclined to suspend the judgment of learned Single judge but the petitioner s Counsel reported to the Court that the seniority list has already been revised, therefore the Division bench recorded;"in view of his representation, we are not inclined to grant any interim order. However, we make it clear that the fixation of seniority will be subject to the result of the Appeal". The respondents submit that, they had been asked by the judgment of this Court to re- fix the seniority of the petitioner which has been done and a tentative seniority list was issued on 23rd June, 1997 and a final seniority list was issued on 2nd December, 1997 to which the petitioner has no grievance, therefore this contempt application is misplaced. ( 3 ) THE case of the petitioner, however is that, although the seniority has been fixed in accordance with the order of this Court, consequential benefits have not been given to the petitioner. He submits that, because of the order of this Court the respondents were bound to pay the arrears of pay to him as a consequence to the fixation of his seniority. He submits that, because of the order of this Court the respondents were bound to pay the arrears of pay to him as a consequence to the fixation of his seniority. The petitioner, before filing this contempt application gave a notice to the respondents and the respondents stated back that;"since there is no direction by the learned Single Judge to pay any consequential benefits in W. P. Nos. 18406/95 and 18379/95 filed by the petitioners, they are not entitled for any consequential benefits if any pending disposal of the Writ appeals". The petitioner wants this Court to construe that the Court by order dated 11th March, 1997 had directed the respondents to fix the seniority of the petitioner and give him the consequential benefits also. He wants that the order made in the writ petition could be "read in conjunction that the writ is allowed. In the prayer of the Writ Petition he had asked for re-fixation of the seniority and also consequential benefits, but the Court while disposing of the petition stated; "under the circumstances, the Writ petition is allowed with the following observations and directions: the order has been reproduced hereinabove and the observations made and directions given by this Court do not anywhere state that after fixation of the seniority the petitioner has also to be given the consequential benefits. ( 4 ) THE learned Counsel for the petitioner relies on various judgments including k. S. S. N. Sarma vs. The Chief General Manager m. Premanandam vs. Regional Manager, SBI singareni Colleries Co Ltd. , vs. S. K. Anwar basha and S. Ramadwndraiah vs. Nagarjuna grameena Bank. According to him, once the seniority was re-fixed it was natural that the consequence should follow automatically. ( 5 ) THIS Court, in these proceedings, is not considering as to what was the real effect of the judgment of this Court, but this court is considering whether there has been wilful disobedience of the Court orders. The consequential benefits may or may not flow but I am not inclined to consider that aspect of the matter since the matter is pending before the Division Bench. Certainly two interpretations to the order of this Court are possible. One interpretation could be that only the seniority had to be re-fixed and the second interpretation can be that, after the seniority is re-fixed all consequential benefits should be given. Certainly two interpretations to the order of this Court are possible. One interpretation could be that only the seniority had to be re-fixed and the second interpretation can be that, after the seniority is re-fixed all consequential benefits should be given. Now, the question before this Court is, whether in such a situation the respondents can be hauled up for committing contempt of the Court. It is well known that all cases of disobedience do not constitute contempt and only those cases in which it is shown to the Court that there has been wilful disobedience of the orders of this Court can be booked under the Contempt of Courts Act. In this case, this Court is not inclined to believe that there has been any wilful disobedience of the order of this Court. Even if it is accepted that the consequential benefits had to be given to the petitioner, even then the Court has not fixed any time for that. The Court had fixed period of three months only for revision of the seniority list and that has been done. Therefore, there is no occasion for accusing the respondents of having committed contempt of this Court. The supreme Court in B. K. Kar vs. Chief Justice of orissa while dealing with a contempt against a Court, laid down as to what constitutes contempt in para-7 of the judgment;"7. Before a Subordinate Court can be found guilty of disobeying the order of the superior Court and thus to have committed Contempt of Court, it is necessary to show that the disobedience was intentional. There is no room for inferring an intention to disobey an order unless the person charged had knowledge of the order. If what a Subordinate Court has done is in utter ignorance of an order of a superior Court, it would clearly not amount to intentional disobedience of that Court s order and would, therefore, not amount to a Contempt of Court at all. There may perhaps be a case where an order disobeyed could be reasonably construed in two ways and the Subordinate Court construed it in one of those ways but in a way different from that intended by the superior Court. Surely, it cannot be said that disobedience of the order by the Subordinate Court was contempt of the superior Court. There may possibly be a case where disobedience is accidental. Surely, it cannot be said that disobedience of the order by the Subordinate Court was contempt of the superior Court. There may possibly be a case where disobedience is accidental. If that is so, there would be no contempt. What is, therefore, necessary to establish in a case of this kind is that the Subordinate Court knew of the order of the High Court and that knowing the order it disobeyed it. The knowledge must, however be obtained from a source which is either authorised or otherwise authentic". The Court was of the view that, where an order can be reasonably construed in two ways and if the Court construed it in one of those ways but in a way different from what was intended by the superior Court, it cannot constitute contempt. ( 6 ) THERE is another judgment being State j and K us. Sayeed Zaffar Mehdi. In this case, a public servant who overstayed in leave was terminated from service, the High Court had allowed the Writ Petition and it was directed that he should be deemed to have in continuous service and all consequential benefits as admissible under rules should be given to him, he was not given promotion, he filed a contempt petition and the mater finally went to the Supreme Court. It is a small judgment which is reproduced herein below:" (1) Special Leave granted. (2) Heard Counsel on both sides. (3) It is true that by the judgment delivered in Writ Petition No. 169 of 1984 the Court directed that the petitioner should be deemed to be in continuous service with all consequential benefits as admissible under the Rules. It was further stated that if any action is proposed to be taken on him for alleged overstaying on leave, it shall be taken in accordance with the principles of law and of natural justice after making proper inquiry in the matter under the Rules. It is true that this order not having been carried in appeal became final. That, however, does not mean that the respondent when refused promotion can move the contempt application in the same matter and seek the Court s order for granting him promotion. The scope of the original writ petition was limited and did not include matters in regard to future promotions. That, however, does not mean that the respondent when refused promotion can move the contempt application in the same matter and seek the Court s order for granting him promotion. The scope of the original writ petition was limited and did not include matters in regard to future promotions. In the contempt application it was not open to the Court to enlarge the scope of the original petition and also direct promotion. It is necessary to impress upon the high Court that contempt being a quasi-criminal matter, care should be taken to see that the scope of the original petition is not enlarged while making orders in contempt matters. The proper course for the respondent was to challenge the decision of the Government refusing to grant him promotion and examine the same in accordance with law. We, therefore, set aside the impugned order dated 30-11-1994 as well as the order of the Division Bench dated 11-10-1996 and hold that the contempt application was misconceived and not competent. However, this will not preclude the respondent from questioning the refusal to grant promotion through proper process, if so advised. The appeal will stand so disposed of with no order as to costs". The Supreme Court did not find it right to allow a contempt petition in the facts and circumstances of the case though the order of the High Court in the original writ petition had become final, in the present case it is yet to become final and an appeal is pending. The Supreme Court also found that, since the contempt was a quasi- criminal matter the scope of the original petition cannot be enlarged in contempt proceedings. If the present contempt petition is allowed, then the petitioner would get what perhaps he has not been given in the Writ Petition itself. Added to this there is an order of Division Bench which states that, the fixation of the seniority will be subject to the result of the appeal, that means even the Division Bench was of the prima facie view at the time of entertaining the appeal that the only relief given to the petitioner was of re-fixing his seniority. ( 7 ) FOR these reasons, I do not find any merit in this application. The contempt is closed.