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2014 DIGILAW 294 (GAU)

Bidyut Jyoti Purkayastha v. Bipasha Dev

2014-03-11

B.P.KATAKEY, P.K.SAIKIA

body2014
JUDGMENT Katakey, J. This appeal by the they Deputy Inspector of Schools, Cachar at Silcahr is directed against the judgment and order dated 3rd May, 2005 passed by the learned single Judge in Cont. Case (C) No.174/2004, holding the appellant guilty of contempt under the provisions of the Contempt of Court’s Act, 1971 (in short, “1971 Act”) for willful and/or deliberate violation of the directions contained in the order dated 29th July, 2003 passed in WP(C) No.5723/2003, whereby and whereunder a direction was issued to pay the current salary to the contempt petitioner, namely, Smti. Bipasha Dev. [2] The facts necessary for the purpose of deciding the present appeal may be noticed as under:- (i) Pursuant to the order of appointment issued, the contempt petitioner, Smti. Bipasha Dev, joined her services as Assistant Teacher in the Lower Primary School on 30th January, 1990. She, thereafter, filed Civil Rule No.2055/1992 praying for a direction to the respondents therein to pay her arrear as well as the current salary. The said writ petition was allowed vide order dated 24th August, 1999 directing payment of arrear as well as current salary. Since no payment was made, despite the direction issued in the aforesaid writ petition, Cont. Case (C) No.551/2000 was filed, which was closed vide order dated 22nd August, 2002, based on the stand taken by the Director of Elementary Education, Government of Assam that 2(two) proposals, one dated 22nd May, 2001 and the other dated 24th May, 2002 for payment of the sum of Rs.3,59,149/- and Rs.4,73,696/-, respectively, on account of the arrear salary payable to the contempt petitioner for the period from 1st January, 1992 to 31st March, 2002 have been submitted. Since the contempt petitioner was not paid, despite submission of such proposals, she filed WP(C) No.5723/2003, wherein an interim order dated 29th July, 2003 was passed directing payment of current salary. (ii) The contempt petitioner thereafter, filed Cont. Case (C) No.174/2004, i.e. present contempt petition concerned, alleging willful and/or deliberate violation of the Court’s direction contained in the order dated 29th July, 2003 passed in WP(C) No.5723/2003, by the respondents therein, including the present appellant. (ii) The contempt petitioner thereafter, filed Cont. Case (C) No.174/2004, i.e. present contempt petition concerned, alleging willful and/or deliberate violation of the Court’s direction contained in the order dated 29th July, 2003 passed in WP(C) No.5723/2003, by the respondents therein, including the present appellant. A single Bench of this Court has found the present appellant guilty of contempt of Court, as despite having the knowledge about the order dated 29th July, 2003 passed in the aforesaid writ petition directing payment of the current salary, he was trying to get the clearance from the immediate superior and thereby willfully violated the Court’s direction. Hence, the present appeal. [3] We have heard Mr. A. Dutta, learned counsel for the appellant and Dr. B. Ahmed, learned counsel appearing for the contempt petitioner/respondent No.1. [4] It has been submitted by Mr. Dutta, learned counsel for the appellant, that though in the show cause reply submitted by the appellant in the contempt case, a stand was taken that the appointment of the contempt petitioner/respondent No.1 is illegal and as such, she is not entitled to salary, since the appellant pursuant to the direction issued by this Court and the subsequent direction issued by the Secretary to the Government of Assam in Education Department submitted two bills, both dated 17th September, 2004, for payment of current salary for the period from 1st November, 1992 to 31st March, 2002, which bills have not been honoured by the treasury, the appellant ought not to have held guilty of contempt, on the ground that objections were raised by the Treasury Officer on 18th September, 2004 based on the objection of the appellant relating to the manner of appointment of the contempt petitioner, since such objection dated 18th September, 2004 does not reflect raising any objection relating to the nature of appointment made. The learned counsel, therefore, submits that the judgment passed by the learned single Judge insofar as it relates to the appellant, may be set aside. [5] Dr. The learned counsel, therefore, submits that the judgment passed by the learned single Judge insofar as it relates to the appellant, may be set aside. [5] Dr. Ahmed, learned counsel appearing for the respondents, on the other hand, has submitted that despite the clear direction issued by this Court on 24th August, 1999 in Civil Rule No.2055/1992 directing the respondents therein to pay the arrear and current salary, the present appellant continued to raise objection questioning the manner of appointment of the contempt petitioner, though Writ Appeal No.29/2006 preferred by the State against the aforesaid judgment and order dated 24th August, 1999 passed in the aforesaid Civil Rule has been dismissed, refusing to condone the delay. The learned counsel further submits that the Treasury Officer raised the objection on 18th September, 2004 mainly because the present appellant, apart from others raised objection relating to the manner of appointment of the petitioner despite the aforesaid judgment and order dated 24th August, 1999. The learned counsel, therefore, submits that the learned single Judge has rightly held the appellant guilty of contempt. The learned counsel, however, has fairly submitted that two bills submitted by the present appellant, however, has been paid subsequently at the insistence of the Court. The learned counsel has further submitted that though the salary for the period from 1st November, 1992 to 31st March, 2002 has been paid to the petitioner, salary for the subsequent period has not been paid, for which the contempt petitioner had to approach this Court again in another writ proceeding. [6] We have considered the submissions advanced by the learned counsel appearing for the parties. We have also perused the pleadings and as well as the materials available on record. [7] The learned single Judge has hold the appellant guilty of contempt on the ground that the Treasury Officer has raised objection dated 18th September, 2004 relating to the two bills submitted by the appellant, based on the communication dated 4th September, 2004, wherein it has been mentioned by the appellant that the appointment of the contempt petitioner is illegal. [8] Communication dated 4th September, 2004, as has been produced by the learned counsel appearing for the contempt petitioner, is a WT Message issued by the Treasury Officer, Silchar to the Deputy Secretary, Finance (BT) Department, which is reproduced below. [8] Communication dated 4th September, 2004, as has been produced by the learned counsel appearing for the contempt petitioner, is a WT Message issued by the Treasury Officer, Silchar to the Deputy Secretary, Finance (BT) Department, which is reproduced below. The said communication has never been issued by the present appellant to the Treasury Officer. “TO SRI B.B. DEY, DEPUTY SECRETARY, FINANCE (BT) DEPTT., DISPUR FROM: TREASURY : SILCHAR. NO. 1787/SA DT. 4-9-2004 (.) REF TELEPHONIC DISCUSSION ON 04/09/04 REGARDING PAYMENT OF ARREAR PAY AND ALLOWANCES OF ONE SMTI. BIPASA DEB, ASSTT. TEACHER OF 57, TIKALPAR GARNDEN L.P. SCHOOL, SILCHAR FOR RS.4,73,696/- RPT FOUR LAC SEVENTY THREE THOUSAND SIX HUNDRED AND NINETY SIX SO RELEASED VIDE FINANCE U.O. NO. BB.1337/2002/1 DTD. 12/08/2002 (.) NO RFT NO CLAIM HAS YET BEEN PREFERRED BY THE D.I. OF SCHOOLS COMMA SILCHAR TO THIS TREASURY TILL DATE (.) MESSAGE ENDS (.) --------------------------------------------------------------------------------------------------------- Memo No.1788/SA Dated, 4/9/2004 Copy by post in confirmation to: Sri B.B. Dey, Deputy Secretary to the Govt. of Assam, Finance (Bt) Deptt. Dispur. Sd/- Treasury Officer, Cachar SILCHAR” [9] The Treasury Officer on 18th September, 2004 raised the following objections, which was communicated by the Treasury Officer to the Deputy Secretary, Finance (BT) Department by fax message. The said fax message is also reproduced below in its entirety:- “To SRI B.B. Dey, Deputy Secretary, Finance (BT) Deptt., Dispur NO. 1915/SA DTD. 18/9/04 D.I. OF SCHOOLS, SILCHAR HAS PRESENTED THE ARREAR PAYBILL OF SMTI. BIPASHA DEB, ASSTT. TEACHER NO.57 TIKALPAR GARNDEN L.P. SCHOOL IN TWO PARTS VIZ. NOV/90 TO DECEMBER 1995 FOR RS.1,29,558/- AND FROM 1/1/96 TO MARCH 2002 FOR RS.3,42,474/- ON 17/9/2004 TO THIS TREASURY (.) BUT THE BILLS HAVE BEEN HELD UNDER OBJECTION FOR THE REASONS APPENDED BELOW COLON (A) FIRST CLAIM REQUIRES TO BE SUPPORTED BY COPY OF APPOINTMENT LETTER (B) SPECIFIC BUDGET ALLOTMENT REQUIRED (C) BUDGET ALLOTMENT COLUMN NOT FILLED IN (D) COPIES OF I.P.S. WANTING (OWING TO REVISION OF PAY) (E) WHETHER PLAN OR NON PLAN TO BE MARKED PROPERLY (F) EMPLOYEES STATUS ETC. TO BE FILLED IN (G) DETAILS OF POST NOT FURNISHED (H) D.D.O. CODE NOT FURNISHED (I) PERIODICAL INCREMENT CERTIFICATE NOT FURNISHED (J) IF THE POST IS, TEMPORARY COPIES OF UP-TO-DATE RETENTION ORDER WANTING (K) REASON FOR NON-DEDUCTION TOWARDS, GIS, GPF, P.TAX MAY BE FURNISHED (L) INCOME TAX TO BE DEDUCTED (M) CERTIFICATE COLUMN NOT SIGNED BY THE D.D.O (N) PERIOD PERTAINING TO 1/1/96 TO 31/7/98 TO BE CREDITED TO GPF AS PER FINANCE INSTRUCTION (.) THIS IS FOR KIND APPRISAL OF GOVT (.) REQUEST ISSUE IMMEDIATE INSTRUCTION(.) MSG ENDS (.) SD/- TREASURY OFFICER, CACAHR SILCHAR. --------------------------------------------------------------------------------------------------------- Memo No.1916-17/SA Dated, 18/9/04 Copy to:- 1) The Deputy Commissioner, Cachar, Silcahr for favour of kind information. 2) Sri B.B. Dey, Deputy Secretary to the Govt. of Assam, Finance (Bt) Deptt. Dispur by post in confirmation. Sd/- Treasury Officer, Cachar SILCHAR” [10] From the aforesaid messages, it transpires that the Treasury Officer has raised objection vide fax message dated 18th September, 2004 not based any communication issued by the appellant to the Treasury Officer on 4th September, 2004. From the said objection dated 18th September, 2004, it also does not transpire that the Treasury Officer has raised objections, relating to payment of the amount vide the aforesaid two bills dated 17th September, 2004 submitted by the present appellant, on the ground that the appointment of the contempt petitioner is illegal. [11] A person can be punished for civil contempt, under the provisions of the contempt of 1971 Act, if he has willfully disobeyed and disregard or violated any judgment, decree, direction, order, writ or other process of a Court or willfully breached any undertaking given to a Court. Hence, there must be willful disobedience or disregard or violation of the Court’s direction, so as to constitute civil contempt within the meaning of the 1971 Act. [12] In the instant case, as noticed above, though in the show cause reply, a stand has been taken by the present appellant that the contempt petitioner’s appointment was illegal, he, however, pursuant to the interim direction dated 29th July, 2003 passed in WP(C) No.5723/2003 submitted two bills for payment of the arrear salary for the period from 1st November, 1990 to 31st March, 2002. The Treasury Officer raised objections on the said two bills on 18th September, 2004, which objections have already been reproduced above. The Treasury Officer raised objections on the said two bills on 18th September, 2004, which objections have already been reproduced above. Those objections were not raised because of the stand taken by the appellant that the contempt petitioner’s appointment was illegal. The said objections were raised on some other counts. It is also not out of place to mention that the salary for the said period, pursuant to the aforesaid two bills has, in the meantime, been paid. [13] In view of the aforesaid discussion, we set aside the judgment and order dated 3rd May, 2005 passed by the learned single Judge in Cont. Case (C) No.174/2004, insofar as the appellant is concerned. [14] The appeal stands allowed. No costs. [15] Before parting, we place on record our displeasure in not paying the salary to the petitioner with effect from 1st April, 2002, despite the directions contained in the order dated 24th August, 1999 passed in Civil Rule No.2055/1992, which order though was put to challenge in a writ appeal, the same, however, was dismissed on refusing to condone the delay. We are confident that the State Government would comply with the directions contained in the aforesaid judgment and order dated 24th August, 1999.