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2006 DIGILAW 963 (GAU)

Madhu Sudhan Bhattacharjee v. P. C. Sharma

2006-11-02

BIPLAB KUMAR SHARMA

body2006
JUDGMENT B.K. Sharma, J. 1. It took more than 15 years for the petitioner to get his pensionary and other retirement benefits, thanks to the apathy shown by the respondents in the matter. 2. The petitioner retired from the services of the Assam State Transport Corporation (ASTC) on attaining the age of superannuation with effect from 31.3.1991. At the time of retirement, he was working as Head Assistant. When he was not paid the pensionary and retirement benefits, he had approached this Court by filing the writ petition being Civil Rule No. 590/1998. The writ petition was allowed by judgment and order dated 23.6.2003 expressing the concern recording the indifferent, casual and apathetic attitude shown by the corporation in the matter. Under the circumstances, the corporation was saddled with the liability of interest @ 12% per annum on the amount due to the petitioner. Direction was issued for making the payments within a period of three months. 3. In spite of the retirement of the petitioner way back in 1991 (31.3.1991) and the aforesaid judgment of this Court delivered on 26.3.2003, the respondents continued in their slumber maintaining the same apathy towards the petitioner about which concern was expressed in the judgment. This led to the filing of the instant contempt petition. Surprisingly enough, the respondents as in the writ proceeding maintained the same plea towards deprivation of due pensionary and other retirement benefits to the petitioner. It is only because of insistence and monitoring of the matter in the contempt proceeding, the respondents have come to their senses and eventually, have paid the petitioner his pensionary benefits alongwith the interest. The petitioner has received the same through his learned Counsel on 19.9.2006. Thus, but for the intervention of this Court in the contempt proceeding, the respondents in spite of the aforesaid judgment and order dated 26.3.2003 would not have extended the due pensionary benefits to the petitioner. 4. I have heard Mr. S.R. Bhattacharjee, learned senior Counsel for the petitioner as well as Mr. P.C. Deka, learned senior Counsel for the respondents. 5. A few basic facts are narrated for a proper appreciation of the matter. The petitioner was first appointed as a Lower Division Assistant (LDA) in the then Assam State Transport Department, Government of Assam. He was so appointed on 10.6.1968 and he was also confirmed in his post. P.C. Deka, learned senior Counsel for the respondents. 5. A few basic facts are narrated for a proper appreciation of the matter. The petitioner was first appointed as a Lower Division Assistant (LDA) in the then Assam State Transport Department, Government of Assam. He was so appointed on 10.6.1968 and he was also confirmed in his post. In March 1970 the Government of Assam constituted the State Road Corporation eventually re-named as ASTC. With the inception of ASTC, all the employees of the Department including the petitioner were deputed to ASTC with effect from 31.3.1970. The petitioner was eventually absorbed in the Corporation with effect from 1.1.1977. Terms and conditions of such absorption provided for counting of his entire service right from 1958 (10.6.1958) and pensionary benefits under the relevant rules. He continued with the corporation and retired from its service with effect from 31.3.1991. 6. The relevant rules namely Regulations 47 and 65 of the Assam State Road Transport Corporation Employees Service Regulation 1971 read as follows: 47. The past service rendered by the employees under the Government will count for the purpose of pension and other benefits to which they may be entitled as if their services have not been interrupted by the reason of their absorption in the corporation. 65. Services in the corporation shall be pensionable and the employee shall be entitled to pension including family pension, gratuity, etc., at the rates and in the manner applicable to the Government servants on the date of commencement of these regulations and/or as may stand from time to time, as the case may be. Employees covered under the pension scheme shall not be entitled to contributory provident fund benefit. 7. On perusal of the aforesaid provisions of Regulations 47 and 65 by which the petitioner is governed, there is no manner of doubt that the petitioner is entitled to pensionary and other retirement benefits taking his service from 10.6.1958 on which date he first joined the services of the Government of Assam in the then Transport Department. 7. On perusal of the aforesaid provisions of Regulations 47 and 65 by which the petitioner is governed, there is no manner of doubt that the petitioner is entitled to pensionary and other retirement benefits taking his service from 10.6.1958 on which date he first joined the services of the Government of Assam in the then Transport Department. This Court in the aforesaid judgment and order dated 26.3.2003 considering all the aspects of the matter came to the categorical finding that the plain and unambiguous language applied in the above mentioned provisions of the Regulations clearly proclaimed that the past service of the petitioner under the Government would be computable for the purpose of pension and his service under the corporation being pensionable, he would be entitled to pension including family pension, gratuity etc. at the rate applicable to the Government servants. In the given circumstances, the plea of the corporation that the petitioner was not in pensionable service did not find favour of this Court and thus was rejected. 8. The ASTC being not satisfied with the aforesaid judgment and order preferred a review petition being R.A. No. 50/2005, but the same was rejected by order dated 24.8.2005. There is no dispute that the matter has attained its finality. Be it stated here that the review petition was filed in 2005 against the aforesaid judgment and order dated 23.6.2003 and no stay order was operating against the same. In the review petition also, as in the writ proceeding, the ASTC urged the same plea that the petitioner is not entitled to pensionary benefits. 9. After the aforesaid judgment and order dated 23.6.2003, the petitioner approached the authorities of the corporation including the present contemners time and again, but there was no response. As a result, the petitioner continued to suffer on account of non-furnishing of pensionary and other retirement benefits. He had no alternative than to approach this Court by filing the instant contempt petition to vindicate his grievance. The contempt petition was entertained by order dated 13.2.2004 by way of issuance of notice to the respondents. All the respondents except the respondent No. 1 received notice, which was sent by the Registry on 17.3.2004. He had no alternative than to approach this Court by filing the instant contempt petition to vindicate his grievance. The contempt petition was entertained by order dated 13.2.2004 by way of issuance of notice to the respondents. All the respondents except the respondent No. 1 received notice, which was sent by the Registry on 17.3.2004. However, there was no response from anyone of the respondents and situated thus, this Court by order dated 24.8.2005 directed the learned Counsel for the contemners to apprise the court as to what steps the respondents had taken in compliance of the judgment and order. Nothing was intimated and the matter was further taken up on 4.5.2006 and after hearing the learned Counsel for the parties, the learned CGSC appearing for the Accountant General was requested to render assistance in the matter. In the meantime, a consolidated counter affidavit was filed on behalf of the respondent Nos. 3 to 7 and the same was filed on 6.1.2006. Be it stated here that respondent Nos. 3 to 7 are the officials of the ASTC, while the respondent Nos. 1 and 2 are the officials of the Government of Assam in the Transport Department. Be it also stated here that in the judgment and order dated 23.6.2003, direction was issued to both the State respondents as well as the ASTC to act in tandem to work out their liabilities. 10. In the counter affidavit filed by the respondent Nos. 3 to 7, the same very old story as was projected in the writ proceeding and the review petition has been projected. In the affidavit nothing has been highlighted as to why there was delay towards payment of pensionary benefits to the petitioner for long 15 years. It has only been stated that some payment was made in 1998 and that the corporation preferred review petition against the judgment in question and that an interim payment of Rs. 20,000 was made on 26.9.2005 which the petitioner refused to accept. According to this affidavit, the petitioner was entitled to Rs. 32.508 only from the corporation as pensionary benefits for the period from April 1991 to September, 2005, but taking into account the payment already made for Rs. 36,967, over payment of Rs. 4,495 was made to the petitioner and that the same would be adjusted against the future payment from October 2005. 11. 32.508 only from the corporation as pensionary benefits for the period from April 1991 to September, 2005, but taking into account the payment already made for Rs. 36,967, over payment of Rs. 4,495 was made to the petitioner and that the same would be adjusted against the future payment from October 2005. 11. Further stand in the affidavit is that the petitioner will have to claim pension to the Government of Assam for the period of service he had rendered under it and that the liability of the corporation to pay pension to the petitioner is only from the date of his absorption in the corporation. They have calculated the monthly pension of the petitioner at Rs. 2,576 out of which Rs. 2,396 is stated to be payable by the Government and the balance of Rs. 180 by the corporation as monthly pension. By taking such a stand in the counter affidavit, the respondents, apart from trying to mislead the court have also willfully and deliberately violated the aforesaid judgment and order dated 23.6.2003. On a plain reading of the above quoted provisions of the regulations and the judgment and order as well as the directions contained therein a man of ordinary prudence will clearly understand the implications thereof, which is, the petitioner is entitled to the pensionary and other retirement benefits taking into account his service all throughout, i.e., from 1958 (10.6.1958) when he had first entered the services of the State Government and thereafter got absorbed in ASTC with effect from 1.1.1977. There is no escape from the plain and literal interpretation of the aforesaid Regulations and the judgment and order that the pension of the petitioner will have to be counted taking into account his past services under the Government and that his service will have to be treated as uninterrupted. 12. As against the aforesaid mandate of the position emerging from the fact situation of the case on the basis of which the aforesaid judgment and order was passed, the respondents by filing the said affidavit once again tried to hoodwink this Court by making misleading statements in the affidavit. The respondents could not have taken the ground that the service of the petitioner is divisible in to two parts, one under the government and another under the corporation. The respondents could not have taken the ground that the service of the petitioner is divisible in to two parts, one under the government and another under the corporation. Clear and unambiguous portrayal made by the aforesaid provisions of the Regulations and the directions contained in the judgment in question, could not have been misunderstood by the respondents unless the same is willful and deliberate. While, portraying their so called stand in the counter affidavit, they have even lost sight of the human aspects of the matter and the fact that the petitioner even after 15 years of retirement from service was living in penury in absence of the retirement benefits and his all out efforts to get the admissible dues got buried under the ice cold hands of the respondents. 13. When the matter was taken up for hearing on 4.5.2006 and the learned Counsel for the respondents was apprised of the strange stand taken in the aforesaid affidavit, a prayer was made to permit the respondents to file an additional affidavit. The prayer was allowed. In the meantime, the petitioner filed his reply affidavit to the counter affidavit filed by the respondents. In the reply affidavit he denied the contentions raised by the respondents and reiterated his stand in the writ proceeding which found favour with this Court. Against this reply affidavit filed by the petitioner, the then Managing Director of the Corporation Shri Donald Gilfellon filed a counter affidavit on 26.4.2006 reiterating the same stand as in the counter affidavit. On 18.9.2006, the subsequent Managing Director of the Corporation namely Shri Khagendra Nath Chetia filed another affidavit. In this affidavit, for the first time, the correct position, which has emerged from the above narration of facts as well as the judgment in question has been depicted. It has been stated as to how the office of the Accountant General, Assam has calculated the amount of Rs. 7,88,691 being the amount payable to the petitioner for the period from 1.4.1991 to 31.12.2005 as arrears. 14. Similar affidavits have been filed by the other respondents of the Corporation tailing in line with the correct position and the entitlement of the petitioner, which stood withheld for more than 15 years. 7,88,691 being the amount payable to the petitioner for the period from 1.4.1991 to 31.12.2005 as arrears. 14. Similar affidavits have been filed by the other respondents of the Corporation tailing in line with the correct position and the entitlement of the petitioner, which stood withheld for more than 15 years. However, in spite of service of notice on the respondent No. 2 Smt. Arundhati Dey, Under Secretary to the Government of Assam in the Transport Department, she has not responded to this proceeding, which itself amounts to contempt. On the other hand, the respondent No. 1, the Secretary to the Government of Assam in the Transport Department namely Shri P.C. Sharma has filed his affidavit on 18.9.2006 stating, inter alia, that he was not in receipt of the notice from this Court and it was only on 17.8.2006, the matter was brought to his notice. Immediately thereafter, the Joint Secretary of the Department by his letter dated 31.8.2006 directed the Corporation to make necessary payment in favour of the petitioner. The Accountant General, Assam namely Shri Pinuel Basumatary has also filed an affidavit on 18.9.2006 stating as to how the calculation regarding entitlement of the petitioner has been made. Learned CGSC appearing on his behalf, produced, during the course of hearing, the copy of the letter dated 23.8.2006 addressed to him by the office of the Accountant General, Assam showing the calculation towards entitlement of the petitioner to the pensionary and other retirement benefits. 15. After noticing all the above facts and monitoring of the case, by passing orders, the respondents finally on 19.9.2006 produced two bank drafts drawn in SBI, bearing No. 516469 dated 9.8.2006 and No. 517489 dated 31.8.2006 for the amounts of Rs. 1,00,000 and Rs. 6,51,724 respectively being the arrear pensionary and other retirement benefits for the period from 1.4.1991 to 31.12.2005. In addition, learned Counsel appearing for the respondents also produced the statement of accounts show in the outstanding dues payable to the petitioner from January 2006 to September 2006, which comes to Rs. 27,126. An undertaking was given that the amount would be paid within 10 days. As per the calculation furnished by the Accountant General, the petitioner is entitled to monthly pension of Rs. 574 per month since revised to Rs. 1370 per month with effect from 1.1.1996. 27,126. An undertaking was given that the amount would be paid within 10 days. As per the calculation furnished by the Accountant General, the petitioner is entitled to monthly pension of Rs. 574 per month since revised to Rs. 1370 per month with effect from 1.1.1996. All these aspects of the matter have been recorded in the order dated 19.9.2006, on which date the hearing stood concluded. 16. In the normal circumstances, an employee retiring from service on attaining the age of superannuation should expect the pensionary and other retirement benefits within a reasonable period of time. The need for early finalisation of the pension matters has all along been emphasized, for a retired employee has to depend on the monthly pension. In the instant case, the petitioner retired from service way back in 1991 (31.3.1991). However, due to the apathy shown by the respondents, he had to wait for more than 15 years to get the same by way of the aforesaid two bank drafts furnished on 19.9.2006. In between, the respondents slept over the matter unmindful of their obligations towards a retired employee. Even the writ petition filed in 1998 could not make any impact on them. They did not respond to the writ petition by filing any counter affidavit. However, due weightage and credence was given to the submissions made by the learned Counsel for the corporation and eventually the judgment and order dated 23.6.2003 containing the aforesaid direction same into being. 17. As per the aforesaid judgment and order necessary payments were to be made within three months. Not to speak of complying with the said direction within the stipulated period, the respondents did not even respond to the contempt proceeding immediately for which notice was issued on 13.2.2004. In spite of receipt of notice they did not respond to the contempt proceeding and it was only on 6.1.2006, the joint affidavit was filed on behalf of the respondent Nos. 3 to 7 taking all the untenable pleas about which discussions have been made above. The respondents not only violated the aforesaid judgment and order of this Court but also tried to mislead the court. They willfully and deliberately misunderstood the provisions of the aforesaid Regulations as well as the aforesaid judgment and order passed on the basis of the fact situation involved in the case. The respondents not only violated the aforesaid judgment and order of this Court but also tried to mislead the court. They willfully and deliberately misunderstood the provisions of the aforesaid Regulations as well as the aforesaid judgment and order passed on the basis of the fact situation involved in the case. But for the monitoring of the case, and insistence of this Court, the respondents would not have budged an inch from their willful and deliberate misconception and misunderstanding and their endeavor to hoodwink the court. 18. The apathy and non-responsive attitude of the respondents stare on the face of it. There is no manner of doubt that the respondent Nos. 2 to 7 are guilty of contempt of court for willful and deliberate violation of the judgment and order dated 23.6.2003 passed in Civil Rule No. 590/1998. As observed by the Apex Court in the case of Ajay Kumar Panday, In re. (1998)7 SCC 248 , the foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice and as such no action can be permitted which may shake the very foundation itself. The Apex Court also emphasized in the case of Supreme Court Bar Assn. v. Union of India (1998) 4 SCC 409 that the purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law. The jurisdiction is not exercised to protect the dignity of an individual judge but to protect the administration of justice from being maligned. Power to punish for contempt is for maintenance of effective legal system. 19. In Kapil Deo Prasad Sah and Ors. v. State of Bihar (1999) 7 SCC 569 , it has been observed, thus: Judicial orders are to be properly understood and complied with. Even negligence and carelessness can amount to disobedience particularly when the attention of the person is drawn to the court's orders and its implications. Disobedience of the court's order strikes at the very root of the rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of effective legal system. It is exercise to prevent perversion of the course of justice. Disobedience of the court's order strikes at the very root of the rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of effective legal system. It is exercise to prevent perversion of the course of justice. In the aforesaid case, it has been further observed: In its famous passage, Lord Diplock in Attorney General v. Times News Papers Ltd. said that there is also an element of public policy in punishing civil contempt, since administration of justice would be under mined if the order of any court of law could be disregarded with impunity. Jurisdiction to punish for contempt exists to provide ultimate sanction against the person who refuses to comply with the order of the court or disregard the order continuously. Initiation of contempt proceedings is not a substitute for execution proceedings though at times that purpose may also be achieve. 20. The essence of contempt is action or inaction amounting to an interference with obstruction to or having a tendency to interfere with or to obstruct the due administration of justice lowering the dignity of the court or shaking the confidence of the public in it is reprehensible. An act constitutes contempt if it is calculated to or has the tendency of interfering with the due course of justice. The object of the discipline enforced by the court in the case of contempt of court is not to vindictive the dignity of the person of the Judge but to prevent undue interference with the administration of justice. The confidence in courts of justice, which the public possess must in no way be tarnished, diminished or wiped out by contumacious behavior of any person. 21. For the foregoing reasons and discussions, I am of the considered view that the respondents are guilty of civil contempt of this Court for willful and deliberate violation of the aforesaid judgment and order. Even if the conduct of the respondent is brought to the category of negligence and carelessness, same will also constitute and amount to disobedience of the aforesaid judgment of this Court as has been emphasized by the Apex Court in the case of Kapil Deo Prasad Sah (supra). Even if the conduct of the respondent is brought to the category of negligence and carelessness, same will also constitute and amount to disobedience of the aforesaid judgment of this Court as has been emphasized by the Apex Court in the case of Kapil Deo Prasad Sah (supra). It is in that context, the Apex Court observed that the power to punish for contempt is necessary for maintenance of effective legal system and to prevent perversion of the course of justice. 22. In view of the above, I am of the considered opinion that the respondent Nos. 3 to 7 are guilty of contempt of this Court for willful and deliberate violation of the directions contained in the judgment and order dated 23.6.2003 in civil rule No. 590/1998. The belated implementation of the judgment in question, not of their own, but upon monitoring of the case by this Court with direction to the Accountant General, Assam to furnish the calculation on the basis of the judgment, cannot absolve the respondents from their willful and deliberate violation of the judgment of this Court. The respondent No. 2 is also guilty of contempt of this Court since she was party in the writ proceeding as well as in the contempt proceeding. In spite of receipt of notice, she has not responded to the contempt proceeding. In the judgment, direction was not only to the Corporation but was also to the State respondents and a duty was cast on her to act in terms of the said direction, further, as observed above, her very conduct in not responding to the contempt notice in such a serious matter itself constitutes contempt of this Court. So far as the respondent No. 1 is concerned, the records and the notes of the Registry do not show service of notice on him. As per the affidavit filed by him, it, was only on 24.8.2006, the matter was brought to his notice and immediately thereafter, the Joint Secretary to the Government of Assam in the Transport Department issued direction to the corporation for making necessary payments to the petitioner. In such a situation, I am of the considered view that the respondent No. 1 is not guilty of contempt of this Court. 23. In view of the above, the respondent Nos. In such a situation, I am of the considered view that the respondent No. 1 is not guilty of contempt of this Court. 23. In view of the above, the respondent Nos. 2 to 7 are held guilty of willful and deliberate violation of the judgment and order dated 23.6.2003 passed in civil rule No. 590/1998 and they are punished with the fine of Rs. 2000 each to be paid to the petitioner. They are also saddled jointly and severely with the cost of this proceeding quantified at Rs. 12,000 and to be paid to the petitioner. 24. In addition to the above, the petitioner is given the liberty to approach the court again, if he is not satisfied with the calculation made by the Accountant General, Assam in respect of the pensionary and other retirement benefits. This liberty has already been granted by order dated 19.9.2006 and the acceptance of the amounts already paid to the petitioner shall be without any prejudice to his further rightful claim, if any. The respondents shall continue to pay the monthly pension to the petitioner and shall also clear the arrear dues if any, without any further delay. They will bear in mind the undertaking furnished on 19.9.2006 and as recorded in the order passed on that day that the further amounts due would be paid within 10 days. 25. The Registry shall implement the punishment and realize the cost in terms of this judgment and order and in accordance with rules. 26. The contempt petition is answered in the above manner. Petition allowed.