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2009 DIGILAW 600 (BOM)

Vaidya K. G. Baraskar v. State of Maharashtra

2009-05-04

R.C.CHAVAN

body2009
JUDGMENT:- This petition under Article 215 of the Constitution and Section 12 of the Contempt of Courts Act complains of disobedience by the respondents-Stat~ and its officers in-charge of education in Ayurveda, of orders in Writ Petition Nos.3508/1992 and 2645/1992. 2. Petitioners are employees of a Ayurvedic college at YavatmaI. Some employees of Ayurvedic colleges at Nagpur and Pune had sought implementation of pension and gratuity schemes to teaching and non-teaching employees of Ayurvedic colleges by filing Writ Petition Nos.2645 of 1990 and 3508 of 1992 which were allowed by a common judgment dated 14.06.1996, in the following terms: "Accordingly, the Government of Maharashtra is directed to implement the pension-cum-gratuity scheme in respect of teaching and non-teaching employees of non-Government aided Ayurvedic and Unani Colleges affiliated to university of Pune and university of Nagpur as also in respect of the employees employed in the Hospitals attached thereto in any event with effect from 26th May, 1981 on such staff exercising their option in writing within four weeks from the Government declaration to implement the scheme to such employees. The Government of Maharashtra shall implement the Scheme within 12 weeks from today." 3. This judgment was challenged by the State by filing Special Leave Petition (C) Nos.I78-179 of 1997 and Civil Appeal Nos.2878-79/1997 which were disposed of on 07.04.1997 with the following observations/ directions; "In view of the respective contentions, the only question that arises for consideration is: whether the High Court would be justified to grant the pension and gratuity scheme to the teachers working in the Ayurvedic, Unani and Homeopathic aided institutions. It is seen that pursuant to the direction issued by this court, the pension and gratuity scheme were extended to the Law Colleges from 1995. Whether the scheme could be extended or not is a question of an executive policy and the Court would not take the responsibility of directing the Government to extend the policy. Court requires examination as to how the policy laid down is being worked out. It is stated that since huge financial outlay is involved in extending the benefits and the Government is not intending to deny the benefit to the segment of the teachers, we appreciate the stand taken by the Government. Court requires examination as to how the policy laid down is being worked out. It is stated that since huge financial outlay is involved in extending the benefits and the Government is not intending to deny the benefit to the segment of the teachers, we appreciate the stand taken by the Government. The Government is, therefore, directed to consider extension of the benefits of pension and gratuity scheme to the teachers working in the Ayurvedic, Unani and Homeopathic aided educational institutions in a phased manner, as was done with respect to the other aided institutions." 4. According to the petitioners this direction required the Government to extend the benefits, with the only liberty of deciding the phased manner in which benefits were to be extended. Petitioners also contend that the judgment of this Court in Writ Petition Nos.2645/1990 and 3508/1992 has become final on being confirmed by the Apex Court. 5. On 27.06.2001 the Government of Maharashtra decided not to extend the said benefits to employees of all aided institutions run on Government grants, which include the institutions which employ the petitioners. 6. One of the beneficiaries of judgment in Writ Petition No.3508 of 1992 Shrihari Vaidya had filed Contempt Petition No.346 of 1996, in which notices were discharged on accepting apology for not deciding the matter within time granted. Said Vaidya and others filed IAs before the Apex Court for clarification/modification of Apex Court's orders dated 07.04.1997. These IAs. were dismissed on 05.04.2004. 7. Since the Government had not extended the benefits of pension and gratuity schemes, the petitioners have filed the present Contempt Petition on 31.10.2007. 8. Though formal notice has not been issued, on behalf of State it is submitted that there is no disobedience of orders of this Court or Supreme Court. The parties have filed pleadings/replies/rejoinders/affidavits reiterating and explaining their respective positions. 9. The learned counsel for the petitioner contended that judgment of this Court in Writ Petitions No.2645 of 1990 and 3508 of 1990 has become final, since it has not been set aside by the Supreme Court in judgment dated 07.04.1997 whereby Special Leave Petitions/ appeals were disposed of. The learned counsel for the petitioners submitted that this aspect has already been considered and concluded by this Court in the following words in order dated 15.09.2008. ".... The learned counsel for the petitioners submitted that this aspect has already been considered and concluded by this Court in the following words in order dated 15.09.2008. ".... The basic entitlement has been found in favour of the petitioners by the Division Bench of this Court and the Hon'ble Apex Court has maintained it. I, therefore, find that there is no question of any substitution of order of this Court by the Hon'ble Apex Court. This Court, therefore, can find out whether there is any breach of directions issued by the Division Bench or not......" 10. In Ajay Mohan Vs. H.N. Rai, reported at AIR 2008 SC 804 on which learned counsel for the petitioners relied, the court observed that it is a trite law that the principles of res judicata apply in different stages of the same proceeding. Similar are the observations in paragraph 6 in C.V. Rajendran Vs. N.M. Muhammed Kunhi, reported at (2002)7 SCC 447 : [2003(2) ALL MR 715 (S.C.)] and in paragraph 14 in Ishwar Dutt Vs. Land Acquisition Collector, reported at (2005)7 SCC 190 . 11. Therefore, according to the learned counsel this aspect cannot be reopened. The learned Additional Government Pleader submitted that stray observations made during the course of hearing are tentative observations which do not amount to adjudication of the issue involved. In Vishnu Traders Vs. State of Haryana, reported at 1995 Supp (1) SCC 461 the Supreme Court held that in the matters of interlocutory orders, principle of binding precedent does not apply. She submitted that if order dated 15.09.2008 is read as a whole, it would be clear that this court had not held that order in Writ Petition Nos.2645 of 1990 and 3508 of 1990 had become final and could be enforced, as it would imply negation of the direction of the Apex Court to consider the question. Therefore, the contention that order dated 15.09.2008 concludes the issue has to be rejected. The categorical prelude to the direction to consider, namely that the question whether to extend the scheme or not was within the exclusive domain of the executive and the Courts would not interfere, according to the learned Additional Government Pleader, amounts to setting aside the judgment in the two writ petitions. The learned Additional Government Pleader is right. The categorical prelude to the direction to consider, namely that the question whether to extend the scheme or not was within the exclusive domain of the executive and the Courts would not interfere, according to the learned Additional Government Pleader, amounts to setting aside the judgment in the two writ petitions. The learned Additional Government Pleader is right. Merely because the Apex Court did not explicitly set aside judgment in Writ Petition Nos.2645/1990 and 3508/1990, it does not follow that judgment has been maintained. The observation that such direction of extension of benefit was out of bounds for courts would necessarily imply that the judgment in said writ petitions has been set aside. 12. The next question is whether the orders of the Government dated 27.06.2001 are in violation of the directions of the Supreme Court in judgment dated 07.04.1997. According to the learned counsel for the petitioner the State Government could not have declined to extend the benefits of the scheme after stating before the Apex Court that it did not intend to deny the benefits of the scheme and considering large financial outlay required, it would consider extending the benefit in a phased manner. Thus according to the learned counsel extension of benefits had to be allowed and the only area left to the Government's decision was the phased manner in which benefits could be extended as has been observed by this Court in order dated 15.09.2008 (referred to in preceding paragraph). Therefore, according to him, total denial of benefits amounted to willful disobedience of orders of the Apex Court. In the order dated 15.09.2008, this court had also referred to decision of a Division Bench of this Court in Suresh S. Naik Vs. Karrnaveer Hire Rural, reported at 2000(2) Bom.C.R. 522 : [2000(2) ALL MR 94] where Court had considered the directions given on 07.04.1997 in Special Leave Petition Nos.2878-79/97, in the context of a similar demand for extension of similar benefits to teachers in colleges under the Social Welfare Department. The Court held as under, in paragraph 7: " .... The State Government had earlier denied such benefits to the teachers working in Ayurvedic, Unani and Homeopathic private aided educational institutions on the ground of huge financial outlay which as the subject-matter of litigation before this Court as well as the Apex Court in State of Maharashtra & others Vs. Dr. The State Government had earlier denied such benefits to the teachers working in Ayurvedic, Unani and Homeopathic private aided educational institutions on the ground of huge financial outlay which as the subject-matter of litigation before this Court as well as the Apex Court in State of Maharashtra & others Vs. Dr. Shri. Hari Shankar Vaidhya & others, (supra). In that case, the learned Senior Counsel appearing on behalf of the State had contended that in view of huge financial outlay, the Government has been, in a phased manner, extending the benefits from time to time, but directions cannot be given to tide down the hands of the Government in extend all the benefits to all of them at a stretch. It was pointed out before the Apex Court in the said case that in (State of Maharashtra Vs. Manubhai Pragaji Vashi, 1995(5) S.C.C. 730 ), directions were given to extend similar benefits to the teachers working in private Law Colleges. In this view of the matter, the Apex Court had observed that whether the scheme could be extended or not is a question of executive policy and the Court will not take the responsibility of directing the Government to extend the policy. The Apex Court appreciated the stand taken by the Government that in view of huge financial outlay, he policy of extending benefits could be implemented only in a phased manner. Accordingly, the Government was directed to consider the extension of benefit of pension and gratuity scheme to the teachers working in Ayurvedic, Unani and Homeopathic aided educational institutions in a phased manner as was done in respect of other aided institutions. " 13. The learned counsel for the petitioners also pointed out that in order dated 15.09.2008, this Court had already concluded that the judgment in Suresh Naik left no doubt about what the Hon'ble Apex Court has said in its order. 14. The learned Additional Government Pleader submitted that such a conclusion would do violence to the judgment of the Supreme Court. She submitted that it would be paradoxical to attribute to the Court a direction to extend the benefit of a scheme after it observed that the Courts would not take such a responsibility. 15. The learned Additional Government Pleader submitted that direction to consider does not imply extending benefits. For this purpose she relied on judgment in A.P.S.R. T.C. Vs. She submitted that it would be paradoxical to attribute to the Court a direction to extend the benefit of a scheme after it observed that the Courts would not take such a responsibility. 15. The learned Additional Government Pleader submitted that direction to consider does not imply extending benefits. For this purpose she relied on judgment in A.P.S.R. T.C. Vs. G. Srinivas Reddy, reported at (2006)3 see 674. In that case the Supreme Court had clarified as to what authorities were expected to do when ordered to "consider" a matters in various situations, in paragraphs 14 to 20 of the judgment which read as under: "14. We may, n 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 the 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 the 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 the 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 the power of judicial review, directs the authority to "consider" and decide the matter. 16.The High Courts also direct the 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 the 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 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, the 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 the 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. 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. 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 bonafide belief that they should grant relief in view of the 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 regularisation/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 the 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. 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). 16. The learned Additional Government Pleader submitted that in the present case, the Apex Court had specifically observed that whether the pension scheme could be extended or not was a question of executive policy and the court would not take the responsibility of directing the government to extend the policy. In this context, the direction to consider extension of benefit, would not fall under the categories of consideration discussed in paragraphs 15, 16 and first part of paragraph 17 quoted above, but would fall under latter (underlined) part of paragraph 17. The dangers in implementation of such directions to consider have been dealt with in paragraph 19 quoted above. 17. The learned counsel for the petitioners submitted that in view of judgment of Division Bench in Suresh Naik's case explaining what the Apex Court has laid down, it would not be open for this Court to come to a contrary conclusion. The question is not of this Court coming to a contrary conclusion, but of the authority concerned and understanding what was expected of it. In Sushila Raje Holkar Vs. Anil Kak, reported at (2008)14 SCC 392 on which the learned Additional Government Pleader relied, the Apex Court observed in paragraph 23 that a proceeding under the Contempt of Courts Act has a serious consequence. In paragraph 28 it held that it is a well settled principle of law that if two interpretations are possible of the order which is ambiguous a contempt proceeding would not be maintainable, and quoted paragraph 18 of earlier judgment in State of Bihar Vs. Sonabati Kumari, reported at AIR 1961 SC 221 . In Chhotu Ram Vs. In paragraph 28 it held that it is a well settled principle of law that if two interpretations are possible of the order which is ambiguous a contempt proceeding would not be maintainable, and quoted paragraph 18 of earlier judgment in State of Bihar Vs. Sonabati Kumari, reported at AIR 1961 SC 221 . In Chhotu Ram Vs. Urvashi Gulati, reported at (2001)7 SCC 530 , where too upon considering the case of an employee in pursuance of directions of the Supreme Court the employee was denied promotion the court held that question of contempt did not arise. It also observed in paragraph 2 that contempt proceedings are quasi criminal in nature and as such standard of proof required is that of a criminal proceeding and that the breach shall have to be established beyond all reasonable doubt. 18. The learned Additional Government Pleader submitted that since the State bonafide believed that after having held that extension of the scheme was exclusively in the policy domain of executive, the Apex Court had not restricted the freedom of Government to decide only upon phases of implementation and so extension of the scheme was not implicit. Therefore, the decision not to implement the scheme does not amount to dis-obedience. 19. The learned counsel for the petitioners submitted that in the present petition by order dated 15.09.2008 the Government was given time to reconsider the issue in the light of observations in the said order, till 12.11.2008. On 04.03.2009, the Government again informed that it had decided not to extend the benefit of the scheme to petitioners. The learned counsel submitted that this decidedly amounted to willful disobedience, first, for not deciding the issue within stipulated time and secondly for stubbornly refusing to consider causation in order dated 15.09.2008. 20. The learned Additional Government Pleader relying on judgment in A nil Kumar Shah Vs. Prof. Ram Sevak Yadav, reported at (2008)14 see 115, submitted that while exercising powers to punish contempt it is not open to a High Court to give fresh directions which will alter the directions which are allegedly disobeyed. It may be useful to reproduce paragraph 50 of the judgment as under: "50. Prof. Ram Sevak Yadav, reported at (2008)14 see 115, submitted that while exercising powers to punish contempt it is not open to a High Court to give fresh directions which will alter the directions which are allegedly disobeyed. It may be useful to reproduce paragraph 50 of the judgment as under: "50. It is by now well settled under the Act and under Article 129 of the Constitution of India that if it is alleged before this Court that a person has willfully violated its order it can invoke its jurisdiction under the Act to enquire whether the allegation is true or not and if found to be true it can punish the offenders for having committed "civil con tempts" and if need be, can pass consequential orders for enforcement of execution of the order, as the case may be, for violation of which, the proceeding for contempt was initiated. In other words, while exercising its power under the Act, it is not open to the Court to pass an order, which will materially add to or alter the order for alleged disobedience of which contempt jurisdiction was invoked. When the Court directs the authority to consider a matter in accordance with law, it means that the matter should be considered to the best of understanding by the authority and, therefore, a mere error of judgment with regard to the legal position cannot constitute contempt of Court. There is no willful disobedience if best efforts are made to comply with the order." 21. In Director, Elementary Education Vs. Pratap Kumar Nayak, reported at (1997)9 SCC 107 a direction given in a contempt petition by the Administrative Tribunal to give appointment to the applicant was called in question. Directions given in the main petition was to consider applicant's case according to rules. Accordingly the authorities considered the applicant's case and found him ineligible, whereupon the applicant filed contempt petition. The Supreme Court held that the impugned direction in contempt petition was contrary to the direction issued earlier and therefore set aside the order of tribunal. The learned Additional Government Pleader, therefore, submitted that since a direction to consider to achieve a particular result could not have been issued in contempt petition, it would not be permissible to construe order dated 15.09.2008 as issuing such a direction. 22. In Lalith Mathur Vs. The learned Additional Government Pleader, therefore, submitted that since a direction to consider to achieve a particular result could not have been issued in contempt petition, it would not be permissible to construe order dated 15.09.2008 as issuing such a direction. 22. In Lalith Mathur Vs. L. Maheswara Rao, reported at (2000)10 see 285 while considering similar situation the court added that instead of challenging under Article 226 of the Constitution the order upon consideration and rejection of applicant's case, the employee had filed a contempt petition which did not lie. Similar are the observations in V. Kanakrajan Vs. General Manager, S.E. Railway, reported at (1996)10 SCC 102 . 23. After carefully considering the arguments advanced, the following conclusions seem inevitable: (i) The judgment of this Court in Writ Petitions No.2645/1992 and 3508/1992 has been set aside by the Supreme Court by holding that question of extension of scheme was in the domain of executive policy; (ii) Direction to "consider" given by the Apex Court was susceptible of the interpretation that the authority was free to decide whether to extend the benefits of the scheme or not; (iii) The direction of the Apex Court did not unmistakably restrict the freedom to only decide phases of implementation; (iv) In the face of observation of the Apex Court that the Court would not take the responsibility of directing the Government to extend the policy, order of this Court dated 15.09.2008 could not be construed as directing the authority to do so; (v) Jurisdiction in contempt proceedings being quasi-criminal in nature, if it is shown that the view taken by authority was possible, it would not be held guilty of contempt; (vi) Remedy of a party aggrieved by a decision taken by an authority in pursuance of orders of the Court to consider an issue, would be to challenge the decision by filing an appropriate writ petition. 24. In view of this, the petition is dismissed. Petition dismissed.