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2011 DIGILAW 89 (GAU)

Harendra Bhowmik, Managing Director, Tripura Apex Weavers Cooperative Society Ltd. v. Subhas Sutradhar

2011-02-02

A.C.UPADHYAY, I.A.ANSARI

body2011
JUDGMENT I.A. Ansari, J. 1. This appeal arises out of the order, dated 15.10.2004, passed in Contempt Case No. 25 of 2003, whereby a learned single Judge of this Court, while holding the Appellant herein as not guilty of committing contempt of the Court, had made certain observations and issued certain directions. Aggrieved by some of the observations so made and the directions so given, the Appellant herein, who was the sole Respondent in the contempt proceeding, has preferred this appeal. 2. We have heard Mr. S. Deb, learned Senior counsel, assisted by Mr. PK Pal, learned Counsel, appearing on behalf of the Appellant, and Mr. C.S. Sinha, learned Counsel, for the Respondents. 3. In order to clearly appreciate the grievances of the Appellant and the sustainability thereof, it is appropriate to take notice of the material facts, which had led to the filing of the application for drawing contempt proceeding against the Appellant herein. 4. By judgment and order, dated 13.08.2002, passed in WP(C) No. 14 of 1999 and three other connected writ petitions, a learned single Judge of this Court disposed of the writ petitions by issuing directions for regularization of the services of the Petitioners in the said writ petitions. The relevant observations made and directions given in the judgment and order, dated 13.08.2002, aforementioned, appearing in paragraphs 10 and 11 (which have been referred to in the presently impugned order, dated 15.10.2004) read as under: 10. In view of the submission of Mr. Das, the learned Counsel for the Respondent society, I must say that while taking up regularization of 157 sanctioned posts the persons regularly appointed in the scale of pay should be considered fist and thereafter, if any vacancy remains out of the above 157 sanctioned post then only the case of fixed pay employees shall be considered along with similarly situated persons. 11. After hearing the learned Counsel of both the parties and after going through the papers and documents submitted in these group of writ petitions, the following directions are made: 1) Out of 157 sanctioned posts regularization already made by the Respondent society shall not be disturbed. 2) If any posts out of 157 sanctioned posts remain vacant then those posts should be filled up in the following manner: a) Regularly appointed persons in regular scale of pay should be regularized first. 2) If any posts out of 157 sanctioned posts remain vacant then those posts should be filled up in the following manner: a) Regularly appointed persons in regular scale of pay should be regularized first. b) After regularization of services as indicated in (a) above, if any posts remain then the persons appointed on fixed pay basis shall be considered on the basis of their seniority and suitability according to the Rules and norms. 5. Contending that the directions, which were given by the judgment and order, dated 13.08.2002, aforementioned, had not been followed, an application for drawing up proceeding for Contempt of Court was made by the Respondents herein, who were Petitioners in the said writ petition, which gave rise to Cont. Case(C) No. 25 of 2003 aforementioned. The Appellant herein, who was the sole Respondent in the contempt application, resisted the contempt application by filing an affidavit, wherein the Appellant contended that the services of the Petitioners had been regularized, as fixed pay employees, against the posts created for fixed pay employees by a Notification issued, in this regard, on 02.09.2003. The question, therefore, which arose in the contempt proceeding, was whether regularization of the services of the Petitioners, as fixed pay employees, was sufficient compliance of the directions, which had been issued by the judgment and order, dated 13.08.2002, aforementioned or was the issuance of Notification, dated 02.09.2003 aforementioned, whereby the services of the said writ Petitioners had been regularized as fixed pay employees against the posts created for fixed pay employees, was in willful and deliberate defiance and violation of the directions of the Court. Having examined the matter in the light of the observations made and the directions given in the judgment and order, dated 13.08.2002, aforementioned, the learned single Judge concluded in the order, dated 15.10.2004 (which stands impugned in this appeal) that the Respondent (i.e. the Appellant herein), had misconstrued the directions of the Court given on 13.08.2002, in WP(C) No. 14 of 1999 and the connected writ petitions, and though the Respondent (i.e. the Appellant herein), had not carried out the directions in letter and spirit, his lapse was due to his having misconstrued the directions given by the order, dated 13.08.2002, and as the failure to comply with the directions, in their entirety, was due to such misconstruction, the failure would not amount to willful and deliberate violation of the directions of the Court. The failure to comply with the directions was, therefore, according to the learned single Judge, unintentional. The learned single Judge, therefore, declined to initiate any proceeding of contempt of Court against the present Appellant. The relevant observations made and the conclusion reached in the order, dated 15.10.2004, by the learned single Judge, read as under: The direction of this Court in the aforesaid judgment and order is clear and unambiguous. As per the said directions, against 157 sanctioned posts, regularization already made shall not be disturbed. Against the remaining vacancies, the first consideration was required to be given to the regularly appointed persons. Thereafter consideration was required to be given against remaining available vacancies from amongst the fixed pay employees on the basis of their seniority and suitability. By the aforesaid notification dated 26.08.03, the services of the Petitioners have been stated to be regularized on fixed pay basis. On the other hand, the services of the first category of the employees indicated in the aforesaid judgment and order have been regularized providing them with regular scale of pay. I am of the considered opinion that the Respondents have misconstrued the direction of this Court. As observed above, the said direction is clear and unambiguous. The directions issued were for regularization of the services of the employees including the Petitioners. As per the said direction, the first consideration was to go to the first category of employees who were regularly appointed in the regular scale of pay. As observed above, the said direction is clear and unambiguous. The directions issued were for regularization of the services of the employees including the Petitioners. As per the said direction, the first consideration was to go to the first category of employees who were regularly appointed in the regular scale of pay. Thereafter consideration was required to be given to the fixed pay employees like that of the Petitioners against any other remaining vacancies. There is no dispute that the Petitioners have been regularized against the said remaining vacancies. However, their grievance is that even after regularization they continued to remain as fixed pay employees as they were, before regularization. Regularization of service necessarily involves regularization against posts. If the Petitioners are to continue on fixed pay basis as they used to be before the order of regularization, same will not carry any meaning. Regularization of service entitles the incumbent to the scale of pay attached to the posts against which the incumbent is regularized. This Court while issuing the aforesaid direction had given first preference to the regularly appointed employees with regular scale of pay. Second preference was given to the employees like that of the Petitioners who were working for a considerable length of time on fixed pay basis. However, the Respondents misinterpreted the said direction to be direction for regularization of such employees on fixed pay basis. During the course of hearing, learned Counsel for the Respondent also emphasized the same view of the Respondents. From the above discussions, it is evident that there is no willful and deliberate violation of the aforesaid directions of this Court as contained in the judgment and order dated 13.08.02 passed in WP(C) No. 12/99 and other three connected writ petitions. The wrong interpretation given by the Respondents to the said directions, on the face of it, is unintentional and cannot be said to be willful and deliberate. In that view of the matter, I am constrained to hold that the Respondents are not guilty of any contempt of this Court for willful and deliberate violation of the said judgment and order. Accordingly, I am not inclined to initiate any contempt of Court proceeding against the Respondents. 6. In that view of the matter, I am constrained to hold that the Respondents are not guilty of any contempt of this Court for willful and deliberate violation of the said judgment and order. Accordingly, I am not inclined to initiate any contempt of Court proceeding against the Respondents. 6. Having concluded as indicated above that the Appellant herein was not guilty of the contempt of Court, the learned single Judge further proceeded to observe and direct as under: The matter does not come to an end with the refusal to initiate contempt of Court proceeding against the Respondents. It has also been observed that the wrong interpretation on the part of the Respondents in respect of the aforesaid decision of this Court has led to the issuance of the order dated 02.09.03 regularizing the services of the Petitioners as fixed pay employees although they are entitled to such regularization with the scale of pay attached to the posts being held by them. The judgment and order in question having attained its finality, the grounds urged by the Respondents such as financial restraint etc. are not available to them. Accordingly, the Respondents shall now do well to pass appropriate order granting regular scale of pay to the Petitioners which is admissible against the posts being held by them. Appropriate order shall be passed in this regard within three months from today. 7. Aggrieved by the above observations, which have been made by the learned single Judge after the learned single Judge had already declined to initiate any contempt proceeding following the conclusion reached that there was no willful and deliberate violation of the directions of the Court, the Respondent, in the writ petition, is before us with this appeal, wherein it has been contended, inter alia, that when a Court finds a person proceeded against as not guilty of contempt, the Court cannot, thereafter, make any observation on the merit of the contempt application and/or issue any mandamus warranting the person, proceeded against, to take any action. 8. Appearing on behalf of the Appellant, Mr. 8. Appearing on behalf of the Appellant, Mr. Deb, as indicated above, submits that when the learned single Judge had concluded in the impugned order, dated 15.10.2004, that there was no willful and deliberate violation of the directions of the Court and had, therefore, declined to initiate any contempt proceeding against the Appellant, further observations made by the learned single Judge, leading to the issuance of directions mandating the Appellant herein to pass appropriate order granting regular pay scale to the writ Petitioners-Respondents herein, is not permissible in law. Support for the submission so made is sought to be derived by Mr. Deb from the cases of V.M. Manohar Prasad v. N. Ratnam Raju and Anr., reported in (2004) 13 SCC 610 , and Jhareswar Prasad Paul and Anr. v. Tarak Nath Ganguly and Ors. reported in (2002) 5 SCC 352 . 9. Controverting the submissions made on behalf of the Appellant, Mr. Sinha, learned Counsel, points out that since the directions, given in the writ petition to regularize the services of the writ Petitioners against sanctioned posts, had not complied with by the Respondents in the writ petition, including the present Appellant, the observations, which have been made by the learned single Judge, and the directions, which have been passed, do not call for any interference by this Court. 10. Before entering into the discussions of the sustainability of the observations made by the learned single Judge, which are under challenge in this appeal and the impugned directions, we may indicate that in V.M. Manohar Prasad (supra), which Mr. Deb has referred to, it was specifically contended that a Court, dealing with the contempt application, has no jurisdiction to issue any direction providing any substantive relief to the Petitioners moving the contempt petition. The relevant observations made, in this regard, in V.M. Manohar Prasad (supra), read as under: 7. On the basis of what has been indicated above, the first submission is that there is no violation of the order passed by the learned Single Judge directing regularization of the employees, since the said order has not been violated in any manner. The matter was considered in the light of the scheme for regularization dated 24-04-1994. Secondly, it is submitted that the Contempt Court had no jurisdiction to issue any direction providing any substantive relief to the Petitioners moving the contempt petition. The matter was considered in the light of the scheme for regularization dated 24-04-1994. Secondly, it is submitted that the Contempt Court had no jurisdiction to issue any direction providing any substantive relief to the Petitioners moving the contempt petition. In support of this contention reliance has been placed upon decisions of this Court in Jhareswar Prasad Paul and Anr. v. Tarak Nath Ganguly & Ors. (2002) 5 SCC 352 and Notified Area Council v. Bishnu C. Bhoi (2001) 10 SCC 636 : 2002 SCC (L&S) 1018. 11. Dealing with the submissions noted above, the Supreme Court, in V.M. Manohar Prasad case(supra), held that under the law, in contempt proceeding, no directions can be issued by the Court providing substantive relief to the contempt applicants. The Supreme Court clarified, in V.M. Manohar Prasad case(supra), that even if a Court finds that its order has been violated, it may punish the contemnor or discharge the contemnor, but no order can be passed to supplement the impugned order, which may have been passed granting relief, meaning thereby that when a Court concludes that a contempt has been committed or the Court concludes no contempt has been committed, no further directions for compliance of the directions given by the Court, for violation or alleged violation whereof contempt application is made, can be given. The relevant observations made, in this regard, read as under: There is no doubt about the position under the law that in contempt proceedings no further directions could be issued by the court. In case it is found that there is violation of the order passed by the court the court may punish the contemnor otherwise notice of contempt is to be discharged. An order passed in the contempt petition, could not be a supplemental order to the main order granting relief. 12. In the backdrop of the position of the law indicated above, it becomes clear that having reached the conclusion that the Appellant herein was not guilty of any contempt, and, particularly, when the learned single Judge had declined to initiate any contempt proceeding against the Appellant, it becomes clear that no further directions could have been issued by the learned single Judge to the Respondents, in the writ petition, including the present Appellant, to pass appropriate orders granting regular scale of pay to the writ Petitioners against the posts held by them. To this extent, the grievance of the Appellant has substance and cannot, therefore, be ignored. This apart, the observations made by the learned single Judge, after a conclusion had already been reached that the Appellant was not guilty of the contempt, that the matter does not come to an end with the refusal to initiate contempt proceeding against the Respondent is also, in the context of the facts of the present case, not permissible in law inasmuch as this observation was clearly made for the purpose of issuing the mandamus, which the learned single Judge, eventually, issued by directing the Respondents to pass appropriate order as indicated above. We, therefore, set aside the observations, which read, "The matter does not come to an end with the refusal to initiate contempt proceeding against the Respondents" and also the directions given, which read "Accordingly, the Respondents shall now do well to pass appropriate order granting regular scale of pay to the Petitioners which is admissible against the posts being held by them. Appropriate order shall be passed in this regard within three months from today". 13. As regards the observations, which read, "It has also been observed that the wrong interpretation on the part of the Respondents in respect of the aforesaid decision of this Court has led to the issuance of the order dated 02.09.03 regularizing the services of the Petitioners as fixed pay employees although they are entitled to such regularization with the scale of pay attached to the posts being held by them. The judgment and order in question having attained its finality, the grounds urged by the Respondents such as financial restraint etc. are not available to them", we are of the view that these observations, though appeared in the order, dated 15.10.2004, after the conclusion, as regards the Appellant not being guilty of the contempt, had already been reached, were meant to merely lend support to, and reinforce, the conclusion, which had been reached by the learned single Judge, that the directions, given in the writ petition, were to regularize the services of the Petitioners as against sanctioned posts and not merely to regularize their services as fixed pay employees. 14. 14. An attempt has also been made by the Appellant to show, before us, as incorrect the observations, made by the learned single Judge that the directions, given in the writ petition, had been misconstrued by the Respondents, we are, therefore, constrained to examine the correctness of this submission. When we carefully read the observations, which appear at para 10 of the judgment, dated 13.08.2002, we find that the inference drawn by the Court, in the writ petition, from the submissions made by the learned Counsel for the Respondent Society, was that while taking up the matter of regularization of 157 sanctioned posts, the persons shall be regularized against sanctioned posts. Even if the Court had misunderstood the submissions made by the learned Counsel for the Respondent, the directions, which were, eventually, given by the Court was with regard to regularization of services as against 157 posts. There is nothing, in the directions given in the writ petition to indicate that the sanctioned posts were against any fixed pay employees. The directions, which were given in the order, dated 13.08.2002, might have been incorrect, but these directions were never challenged and the same, therefore, attained finality. In the face of the clear and unambiguous directions, which were so issued, there can be no escape from the conclusion, and was rightly concluded by the learned single Judge in the order, dated 15.10.2004, that the direction was to regularize the services of the Petitioners as against 157 sanctioned posts. We, therefore, find no substance in the submission made on behalf of the Appellant that the learned single Judge's conclusion that the Respondents in the writ petition had misconstrued the directions, which were issued in the order dated 15-10-2004, passed in the writ petition, is incorrect. 15. In the result and for the reasons discussed above, this appeal is allowed to the extent as indicated above. 16. However, there shall be no order as to costs. Appeal allowed.