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2006 DIGILAW 1475 (MAD)

L. Ravindran v. P. Sundari

2006-06-23

P.D.DINAKARAN, P.P.S.JANARTHANA RAJA

body2006
Judgment :- The above appeal is directed against the order of the learned single Judge dated 2.8.2005 made in Contempt Petition No.955 of 2004 holding that the appellant had wilfully disobeyed the orders of the Court and thus, committed contempt and thereby, imposing a punishment to pay Rs.2,000/- within one week from that date, viz., 2.8.2005, failing which, the appellant to undergo simple imprisonment for a period of one month. The respondent has preferred the above contempt petition for the alleged wilful default of the order dated 12.7.2004 made in W.P.No.37990 of 2003, which was filed for issuance of Writ of Certiorarified Mandamus to call for the records of the 2nd respondent therein, who is the appellant in this appeal, dated 24.11.2003, to quash the same and to direct the respondents therein to regularise the services of the petitioner therein. 2.1. The brief facts of the case are: The respondent herein was appointed as a Sweeper on temporary basis in the year 1990 in the appellant Society, after the demise of her husband in the Neyveli Lignite Corporation, pursuant to an agreement between the Corporation and the appellant Society. At the time of regularisation of services, the respondent, who opted for the same, was called for an interview and during medical test conducted on 18.12.1999, as the respondent was not having Certificate of Birth as registered in the local bodies evidencing her date of birth, she produced a certificate issued by the Assistant Civil Surgeon, District Head Quarter's Hospital, Cuddalore, certifying that she was aged 44 years as on 1.2.2000. Since the medical test revealed her age as 55 years as on 1.1.2000, the appellant Society passed an order dated 13.11.2002 retiring the respondent on superannuation with effect from 31.12.2002. 2.2. Pursuant to the above order, the respondent submitted a representation enclosing the certificate dated 24.12.2002 issued by the Corporation of Chennai, to prove that her date of birth is 30.10.1956. On the basis of the said representation, she was again sent for medical examination and the Medical Board, by proceedings dated 20.1.2003, certified her age as 57 years as on 31.12.2002. After receiving the same, the respondent again submitted a representation bringing to the notice of the appellant herein the Certificate of Birth issued by the Corporation of Chennai on 24.12.2002, certifying her date of birth as 30.10.1956. After receiving the same, the respondent again submitted a representation bringing to the notice of the appellant herein the Certificate of Birth issued by the Corporation of Chennai on 24.12.2002, certifying her date of birth as 30.10.1956. As no orders were passed in the said representation, the respondent has filed the writ petition. 2.3. This Court, on considering the above facts, by order dated 12.7.2004, disposed of the writ petition as follows:- "Hence, the Writ Petition is disposed of with a direction to the second respondent to consider the request of the petitioner as to the age with reference to the certificate issued by the Corporation of Chennai dated 24.12.2002." 2.4. Pursuant to the above order, the appellant Society, while considering the request of the respondent as to the age with reference to the certificate issued by the Corporation of Chennai, rejected the same by proceedings dated 17.8.2004 and ordered that the respondent is due to retire on superannuation on attainment of 58 years of age as on 31.12.2003. The relevant portions of the above order read as follows:- "(iv) The Medical board of NLC General Hospital, after a proper examination and assessment of her age, communicated through their letter dated 23.2.2001 that her age was 55 years as on 1.1.2000. Although, she produced a certificate from an Assistant Civil Surgeon of the District Head Quarters Hospital, Cuddalore, subsequently, certifying that her age was 44 years as on 1.2.2000, it could not be accepted by the Society as she adopted the course of action on her own accord independent of the Society and in contravention of the Society's Standing Orders. As such, the Society passed an order dated 13.11.2002 retiring her on superannuation with effect from 31.12.2002 in line with Section 35 of the Standing Orders of the Society. But she submitted a representation dated 28.12.2002 stating that she was only 46 years of age as on 31.12.2002 and prayed for reassessment of her age and once again vouched that she would abide by whatever the Medical result was. The Society though was well within its rights to reject such request, with a view to afford one more opportunity in terms of S.O.5.2 referred under her letter dated 27.12.2002 to the District Medical Officer, Government Hospital, Cuddalore, for assessment of her age. The Society though was well within its rights to reject such request, with a view to afford one more opportunity in terms of S.O.5.2 referred under her letter dated 27.12.2002 to the District Medical Officer, Government Hospital, Cuddalore, for assessment of her age. After the Medical Test, the Medical Board of the Government Head Quarters Hospital, Cuddalore, declared Smt.P.Sundari's age as 57 years as on 31.12.2002. (v) Under these circumstances Smt.P.Sundari produced a Certificate of Birth issued by the Corporation of Chennai dated 24.12.2002 stating that her date of birth was 30.10.56. As this was totally a belated action on her part, the Society, which followed only the procedures laid down in its Standing Orders, came to the conclusion that the age as assessed by the Medical Board of the Government Head Quarters Hospital, Cuddalore, shall hold good in respect of Smt.P.Sundari. Further more, as per a Certificate of Birth issued as far back as 4.4.75 by the Corporation of Madras in respect of her second child (copy enclosed), who was born on 28.10.69, the age of the mother of the child, Smt.P.Sundari, against column 8 (b) was indicated as 20. Whereas, in the Certificate of Birth dated 24.12.2002 issued to Smt.P.Sundari by the very same Corporation of Chennai, her date of birth is given as 30.10.56. Further, the absence of the name of the child born in 1969 in the Birth Certificate dated 4.4.75, and the inclusion of the name of the child born on 30.10.56 in the Certificate dated 24.12.2002 gives a bonafide reasonable suspicion as to the genuineness of the latter. As such, the contradiction in respect of her age is exposed beyond doubt from these two Certicates issued by the same agency which only renders that the Certificate dated 24.12.2002 cannot be relied upon as a conclusive proof of her age. 3. In the facts and circumstances set-out above, Smt.P.Sundari's request as to her age with reference to the Certificate issued by the Corporation of Chennai dated 24.12.2002 cannot be considered for acceptance by the Society." 2.5. 3. In the facts and circumstances set-out above, Smt.P.Sundari's request as to her age with reference to the Certificate issued by the Corporation of Chennai dated 24.12.2002 cannot be considered for acceptance by the Society." 2.5. Complaining that in spite of the direction given by this Court in the writ petition by order dated 12.7.2004 to consider the age of the respondent with reference to the certificate of Birth dated 24.12.2002 issued by the Corporation of Chennai, the appellant Society refused to consider the request in favour of the respondent, the present contempt petition has been filed, wherein, the Court, finding that the appellant has interpreted the Court order, held that the appellant has committed an act of contempt and accordingly, imposed the punishment as referred to above. 3. We have gone through the order of the learned single Judge made in the contempt petition as well as the proceedings of the appellant Society. 4. According to the respondent/contempt petitioner, the direction of this Court in the writ petition is to consider the request of the respondent positively. Accepting that contention, the learned single Judge, in paragraphs 8 and 9 of the order, assuming that the order of this Court was not duly implemented, has stated as follows:- “ 8. Coming to the facts of this case, while considering the grievance of the petitioner, this Court by placing reliance on the certificate of birth issued by the Corporation of Chennai certifying that the petitioner was born on 30.10.1956 directed the respondent to consider the claim for regularisation by duly taking into the said certificate. Infact, in the counter affidavit filed in the Writ Petition the respondent had taken the stand that the certificate issued by the Corporation of Chennai produced by the petitioner was belated. Even after considering the counter affidavit and after hearing the learned counsel appearing for the respondent, this Court had directed the respondent to consider the request of the petitioner for regularisation as to the age with reference to the certificate issued by the Corporation of Chennai dated 24.12.2002. However, the respondent has chosen to reject the request of the petitioner solely on the basis of the reasons stated in the counter affidavit filed in the Writ Petition which was not accepted by this Court. 9. However, the respondent has chosen to reject the request of the petitioner solely on the basis of the reasons stated in the counter affidavit filed in the Writ Petition which was not accepted by this Court. 9. A plain reading of the said order shows that the respondent has sat over the judgment of this Court by rejecting the certificate of Corporation of Chennai dated 24.12.2002 on the ground that it was produced belatedly. In my considered view, the interpretation sought to be placed by the respondent cannot be allowed, as if at all, the respondent is aggrieved by the said order, he would always be entitled to challenge the same by preferring appeal. Infact, the appeal questioning the said order was also dismissed by a Division Bench of this Court." 5.1. We are unable to concur with the views expressed by the learned single Judge for the reason that time and again, the Apex Court deprecates the attempt made by the employees in the matter of change of date of birth at the fag end of their retirement. 5.2. The Apex Court in Burn Standard Co. Ltd., v. Dinabandhu Majumdar, AIR 1995 SC 1499 held that the correction of date of birth at fag end of service with an object of continuing in service should not be entertained. In the said decision, the Apex Court also deprecated, as unwarranted, the entertainment of writ petitions by the High Courts and granting interim relief in the matters of retirement of employees of the Government or its instrumentalities seeking correction in the date of birth in the service register at the fag end of their service. 5.3. Further, in a case where the controversy over the date of birth of an employee has been raised long after joining the service and the matter has engaged the attention of the authority concerned and has been determined by following the procedure prescribed under the service rules or general instructions issued by the employer and it is not the case of the employee that there has been any arithmetical mistake or typographical error patent on the face of the record, the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India should not interfere with the decision of the employer, vide G.M., Bharat Coking Coal Ltd., v. Shib Kumar Dushad, [2000] 8 SCC 696. 5.4. 5.4. In STATE OF U.P. v. GULAICHI [ (2003) 6 SCC 483 ], while dealing with the similar issue regarding correction of date of birth at the verge of retirement, held as follows:- "Of late a trend can be noticed, that many public servants, on the eve of their retirement raise a dispute about their records, by either invoking the jurisdiction of the High Court under Article 226 of the Constitution or by filing applications before the Administrative Tribunals concerned, or even filing suits for adjudication as to whether the dates of birth recorded were correct or not. An application for correction of the date of birth should not be dealt with by the courts, Tribunals or the High Court keeping in view only the public servant concerned. Any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury. This is certainly an important and relevant aspect, which cannot be lost sight of by the court of the Tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be reasonable time as provided in the rules governing the service,t he court or the Tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible. Before any such direction is issued or declaration made, the court or the Tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of the date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be within at lease a reasonable time. In many cases it is a part of the strategy on the part of such public servants to approach the court or the Tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates or birth in the service-books. In many cases it is a part of the strategy on the part of such public servants to approach the court or the Tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates or birth in the service-books. By this process, it has come to the notice of the Supreme Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The court or the Tribunal must, therefore, be slow in granting an interim relief or continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and thereby caused injustice to his immediate junior." 5.5. Further, in the case of COAL INDIA LTD. v. ARDHENDU BIKAS BHATTACHARJEE [(2005) 12 SCC 201], whereunder when the appellant/employer therein refused to change the date of birth on the basis of the matriculation certificate produced by the respondent/employee therein at the fag end of his service career, the employee approached the High Court and the High Court, in exercise of its writ jurisdiction, directed the appellant therein to change the date of birth, the Apex Court set aside the order of the High Court by holding that when the basis for correcting the date of birth by the Secondary Education Board in Bangladesh after 38 years is essentially a question of fact, the High Court ought not to have exercised its writ jurisdiction to determine the real date of birth. 6.1. That apart, the direction of the learned single Judge to consider the certificate of Birth issued by the Corporation of Chennai would not mean to consider the same favourably and grant the relief as prayed for as held by the learned single Judge in the contempt proceedings. 6.2. The Apex Court, in A.P.SRTC v. G.SRINIVAS REDDY [ (2006) 3 SCC 674 ], distinguishing the direction to consider simpliciter and the direction to consider in the light of the findings and observations of the Court, held as follows:- "14. We may, in this context, examine the significance and meaning of a direction given by the court to "consider" a case. We may, in this context, examine the significance and meaning of a direction given by the court to "consider" a case. When a court directs an authority to 'consider', it requires the authority to apply its mind to the facts and circumstances of the case and then take a decision thereon in accordance with law. There is a reason for a large number of writ petitions filed in High Courts being disposed of with a direction to "consider" the claim/case/representation of the petitioner(s) in the writ petitions. 15) Where an order or action of the State or an authority is found to be illegal, or in contravention of prescribed procedure, or in breach of the rules of natural justice, or arbitrary/unreasonable/ irrational, or prompted by mala fides or extraneous consideration, or the result of abuse of power, such action is open to judicial review. When the High Court finds that the order or action requires interference and exercises the power of judicial review, thereby resulting in the action/order of the State or authority being quashed, the High Court will not proceed to substitute its own decision in the matter, as that will amount to exercising appellate power, but require the authority to 'consider' and decide the matter again. The power of judicial review under Article 226 concentrates and lays emphasis on the decision making process, rather than the decision itself. 16) The High Courts also direct authorities to 'consider', in a different category of cases. Where an authority vested with the power to decide a matter, fails to do so in spite of a request, the person aggrieved approaches the High Court, which in exercise of power of judicial review, directs the authority to 'consider' and decide the matter. In such cases, while exercising the power of judicial review, the High Court directs 'consideration' without examining the facts or the legal question(s) involved and without recording any findings on the issues. The High Court may also direct the authority to 'consider' afresh, where the authority had decided a matter without considering the relevant facts and circumstances, or by taking extraneous or irrelevant matters into consideration. In such cases also, High Court may not examine the validity or tenability of the claim on merits, but require the authority to do so. The High Court may also direct the authority to 'consider' afresh, where the authority had decided a matter without considering the relevant facts and circumstances, or by taking extraneous or irrelevant matters into consideration. In such cases also, High Court may not examine the validity or tenability of the claim on merits, but require the authority to do so. 17) Where the High Court finds the decision-making process erroneous and records its findings as to the manner in which the decision should be made, and then directs the authority to 'consider' the matter, the authority will have to consider and decide the matter in the light of its findings or observations of the court. But where the High Court without recording any findings, or without expressing any view, merely directs the authority to 'consider' the matter, the authority will have to consider the matter in accordance with law, with reference to the facts and circumstances of the case, its power not being circumscribed by any observations or findings of the court. 18) We may also note that sometimes the High Courts dispose of matter merely with a direction to the authority to 'consider' the matter without examining the issue raised even though the facts necessary to decide the correctness of the order are available. Neither pressure of work nor the complexity of the issue can be a reason for the court, to avoid deciding the issue which requires to be decided, and disposing of the matter with a direction to 'consider' the matter afresh. Be that as it may. 19) There are also several instances where unscrupulous petitioners with the connivance of 'pliable' authorities have misused the direction 'to consider' issued by court. We may illustrate by an example. A claim, which is stale, time-barred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to 'consider' and dispose of the representation. When the court disposes of the petition with a direction to 'consider', the authority grants the relief, taking shelter under the order of the court directing him to 'consider' the grant of relief. When the court disposes of the petition with a direction to 'consider', the authority grants the relief, taking shelter under the order of the court directing him to 'consider' the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order 'to consider' as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting undeserving relief, in pursuance of orders to 'consider', may be on account of ignorance, or on account of bona fide belief that they should grant relief in view of court's direction to 'consider' the claim, or on account of collusion/connivance between the person making the representation and the authority deciding it. Representations of daily wagers seeking regularization/absorption into regular service is a species of cases, where there has been a large scale misuse of the orders 'to consider'. 20. Therefore, while disposing of writ petitions with a direction to 'consider', there is a need for the High Court to make the direction clear and specific. The order should clearly indicate whether the High Court is recording any finding about the entitlement of the petitioner to the relief or whether the petition is being disposed of without examining the claim on merits. The court should also normally fix a time-frame for consideration and decision. If no time-frame is fixed and if the authority does not decide the matter, the direction of the court becomes virtually infructuous as the aggrieved petitioner will have to come again to court with a fresh writ petition or file an application for fixing time for deciding the matter." (emphasis supplied) 6.3. In the instant case, the learned single Judge of this Court has only given a direction to consider, without rendering any finding or making any observation as to the binding effect of the certificate on the authorities automatically, that too when the same was produced at the fag end of the retirement. In the instant case, the learned single Judge of this Court has only given a direction to consider, without rendering any finding or making any observation as to the binding effect of the certificate on the authorities automatically, that too when the same was produced at the fag end of the retirement. In the absence of any such finding or observation, it may not be proper to hold that the direction to consider the request of the respondent herein as to the age with reference to the certificate issued by the Corporation of Chennai, amounts to an order to the authority to grant the relief sought for, rather, such a direction to the appellant herein to consider only requires the authority to apply his mind to the facts and circumstances of the case and then, take a decision in accordance with law, which, of course, includes the power to refuse the relief sought for. 7. In that view of the matter, we do not see any wilful disobedience on the part of the appellant, much less, disobedience, as complained by the respondent for the alleged non implementation of the order dated 12.7.2004 made in W.P.No.37990 of 2003, as viewed by the learned single Judge. Accordingly, the Contempt Appeal is allowed. No costs.