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2005 DIGILAW 478 (PAT)

State Of Bihar v. Most. Siya Rani

2005-05-03

NAGENDRA RAI, S.N.HUSSAIN

body2005
Judgment 1. Heard learned counsel for the appellants and the learned counsel for the sole respondent who has appeared by filing a vakalatnama. 2. The appellants are aggrieved by the order dated 22.3.2005 passed in CWJC No. 11092 of 2003 and MJC No. 618 of 2005 by which the learned Single Judge has ordered for payment of penal interest to the writ petitioner-respondent at the rate of 7% on the entire amount except GPF which have accrued by way of retiral dues as well as cost of Rs. 2000/. 3. Facts necessary for disposal of the present appeal are that the husband of the writ petitioner-respondent was an employee of the Education Department the Government of Bihar and retired as Deputy Secretary (Class II) on 31.1.1985. He did not get pension and gratuity and died on 8.10.1999. The wife of the deceased employee filed a writ petition for payment of family pension as well as arrears of pension to be paid to her late husband. 4. The learned Single Judge disposed of the said writ petition alongwith other cases in terms of the orders passed in CWJC No. 7054 of 2003 and analogous cases on 19.9.2003 with modification that two paragraphs affidavit personally sworn by the concerned authority must be filed by 5th December, 2003, and the parties will be bound by the said direction and they should proceed in the matter accordingly. Thereafter a revival petition was filed on behalf of the writ petitioner-respondent pursuant to which the matter was taken up on 29.3.2004 and during course of hearing learned counsel for the State produced two demand drafts one for Rs. 1,54,193/- and the other for Rs. 3,261/- for payment of the remaining dues. He also produced the details of calculation. The two drafts and the details of calculation were handed over to the learned counsel for the writ petitioner-respondent. Thereafter the learned Single Judge dropped the procceding with liberty to the writ petitioner-respondent to move the authority concerned in case there is any discrepancy in the calculation. The relevant part of the order dated 29.3.2004 runs thus: "Learned counsel for the petitioner, however, submitted that pursuant to the authority for life time pension of the deceased employee payments have not been made so far. The authority has been issued to the Treasury Officer, Muzaffarpur. The relevant part of the order dated 29.3.2004 runs thus: "Learned counsel for the petitioner, however, submitted that pursuant to the authority for life time pension of the deceased employee payments have not been made so far. The authority has been issued to the Treasury Officer, Muzaffarpur. The Treasury Officer, Muzaffarpur is thus directed to ensure encashment/ payment of life time pension pursuant to the authority issued by the Accountant General within a week of the receipt/ production of a copy of this order, failing which the petitioner will be at liberty to file two pages affidavit for revival of the contempt matter against him. However, the petitioner is given liberty to move the authority concerned in case there is any discrepancy in the calculation." 5. Thus the learned Single Judge gave liberty to the writ petitioner-respondent to move the authority concerned in case there was any discrepancy in the calculation. Then again a revival petition was filed on account of non-encashment of the Bank drafts which were submitted before the Bank but the same were lost. Thereafter the learned Single Judge by the impugned order dated 22.3.2005 without verifying as to how the Bank drafts were lost, directed the appellants to pay penal interest @ 7% on the amount of retiral dues etc. except G.P.F. for the period of 19 years. 6. Two points have been raised by the learned counsel for the appellants firstly that after disposal of the writ petition, the learned Single Judge has become functus officio and if the order was not complied with then the remedy available to the writ petitioner respondent was by way of filing a contempt petition and not a revival petition in the same writ petition. In this connection he drew our attention to the fact that because of such orders passed by the learned Single Judge on the revival petition, on one hand many contempt matters are disposed of out of way as revival petition, on the other hand there are so many contempt petitions arising out of writ petitions disposed of by other Courts which take much time to be disposed of as they are taken in seriatem by the order of the Chief Justice. 7. 7. The learned counsel for the other side contended that the learned Single Judge is well within his jurisdiction to proceed in the matter suo motu if he finds that the order/direction issued by him has not been complied with. 8. We cannot doubt the power of a learned Single Judge to proceed suo motu if the situation so warrants but once the case is disposed of by a learned Single Judge, he becomes functus officio. In a case where order of this Court is not complied with, remedy available to the party is not by way of filing a revival petition but by file a petition for initiation of a contempt proceeding under Article 215 of the Constitution of India as also under the Contempt of Courts Act and then the matter proceeds under the Contempt of Courts (Patna High Court) Rules being registered as Miscellaneous Judicial case and such MJCs are allotted to a Bench by the order of the Chief Justice and disposed of according to number and position so that there may not be any grievance that case of a particular party has not been taken up whereas cases filed subsequently have already been taken up and disposed of as revival petitions. 9. In the facts and circumstances of the case, we are of the view that filing of the revival petition itself was not maintainable. There is no procedure under the Patna High Court Rules or any other rule for asking a party to file a revival petition before a learned Single Judge after he has disposed of the case. 10. The second point advanced on behalf of the appellants was that once the revival petition was disposed of when two drafts were handed over to the writ petitioner-respondent and at that time no order for payment of penal interest was made, the learned Single Judge in the subsequent revival petition should not have ordered for payment of penal interest. 11. No doubt if there is non-compliance of the order a person can be punished for the contempt of court but before doing so, it is to be found as to who is at fault. As noticed earlier, the State authorities had already given the two drafts to the counsel for the writ petitioner-respondent but they were lost in the Bank. No doubt if there is non-compliance of the order a person can be punished for the contempt of court but before doing so, it is to be found as to who is at fault. As noticed earlier, the State authorities had already given the two drafts to the counsel for the writ petitioner-respondent but they were lost in the Bank. In these circumstances, before fastening the liability, an inquiry should have been made and liability should have been fixed on the Bank if the two drafts were lost in the Bank itself. 12. Taking into consideration the totality of the circumstances, we are of the view that the application for revival of the proceeding before the learned Single Judge was not maintainable. However, as there was some delay on the part of the appellants in making payment of the retiral dues to the writ petitioner-respondent, instead of asking the State authorities to pay interest at the rate of 7% on the entire amount, as ordered by the learned Single Judge, they are directed to, pay a lump sum of Rs. 50,000/- (fifty thousand) to the writ petitioner-respondent within two months from today. Since asking the writ petitioner-respondent at this stage to file a petition for initiating a contempt proceeding will result in hardship, as the matter has allready been delayed, we have passed the aforesaid order directing the State to pay the aforesaid lump sum amount. 13. This appeal is accordingly disposed of.