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2014 DIGILAW 450 (CHH)

A. K. Chhibber v. Chairman, Coal India Limited

2014-12-09

SANJAY K.AGRAWAL

body2014
Order 1. This is rule on two persons (respondents/contemnors No. 2 & 3) requiring them to show cause why they should not be proceeded against contempt for having disregarded and disobeyed, the order of this Court passed in Writ Appeal No.135/2009 dated 15/06/2010. 2. Division Bench of this Court, by its order dated 15/06/2010, while setting aside the order of learned Single Judge was pleased to direct the respondents therein namely, Coal India Limited, South Eastern Coal Fields Limited and Director (Personnel I. & R) Coal India Limited, to consider the case of promotion of the contempt petitioner with effect from the date when his juniors were considered for promotion and were promoted. 3. It is the case of the contempt petitioner that pursuant to the order passed by Division Bench of this Court on 15/06/2010, he communicated the order of this Court to the contemnors herein by making representation on 16/08/2010 and prayer was made to comply the aforestated order. It is further case of the petitioner herein that in respect of the representation made by the petitioner, in utter disregard of the order passed by this Court, his representation was rejected by the contemnor No. 3 herein by order dated 6/7/12/2010 and communicated by contemnor No. 2 herein by memo dated 09/12/2010 to him and it is further case of the contempt petitioner that a bare perusal of the aforesaid order would show that it is clear case of contempt of lawful authority of this Court. 4. Invoking contempt jurisdiction of this Court under Article 215 of the Constitution of India read with Section 12 of the Contempt of Courts Act, 1971, in abovestated background contempt petitioner herein has filed this contempt petition alleging that the respondents particularly contemnors No. 2 & 3 have not complied the order complained of dated 15/06/2010 in its letter and spirit, and therefore, they be punished for disregarding and disobeying the order complained of. 5. Rule was issued on 15/03/2011 to the contemnor No. 2 only and thereafter by order dated 13/02/2012, the time was given to the counsel for the contemnor No. 2 to file counter affidavit on behalf of the contemnors No. 1 & 3 also. 5. Rule was issued on 15/03/2011 to the contemnor No. 2 only and thereafter by order dated 13/02/2012, the time was given to the counsel for the contemnor No. 2 to file counter affidavit on behalf of the contemnors No. 1 & 3 also. The counter affidavit has been filed on behalf of the contemnors herein that the case of the contempt petitioner has already been considered in accordance with applicable Service Rules by competent authority of Coal India Limited i.e. contemnor No. 3, immediately on receipt of representation from the petitioner and after considering the same, the answering respondent/contemnor No. 3 has passed a detailed order holding that petitioner is not entitled for any relief other than what has already been granted to him, and as the order complained of has fully and substantially been complied with, therefore, rule issued against the contemnors herein deserves to be discharged and contempt proceeding against them be dropped. 6. Mr. A.K. Chhibber, appearing in person would submit that order passed by contemnor No. 3 holding that he is not entitled for promotion from the date on which the case of Mr. A.K. Shrivastava and Mr. A.K. Mitra were considered and promoted is wholly illegal and contrary to the facts and law. He would further submit that written test was not never conducted and the finding recorded in the order dated 67/12/2010 (Annexure C6) in that regard is absolutely illegal therefore, the contemnors herein be punished for disobedience of order of this Court passed in Writ Appeal No.135/2009. 7. Mr. Kishore Bhaduri, learned counsel appearing for the respondents/contemnors would submit that the order complained of dated 15/06/2010 directing contemnors herein to consider the case of the petitioner with effect from the date when his juniors were considered for promotion in accordance with Service Rules prevalent at that time, was fully complied with and on due consideration, the contemnor No. 3 found that the claim of contempt petitioner, claiming promotion at par with Mr. A.K. Shrivastava and Mr. A.K. Mitra is not tenable as aforesaid two officers were taken over from the other Coal Companies in executive cadre, whereas Mr. A.K. Chhibber was taken over in non-executive cadre. He would further submit that in the contempt petition, the petitioner has accepted the fact that the order passed on 06/07/12/2010 by competent authority of Coal India Limited rejecting his case was communicated to him. A.K. Chhibber was taken over in non-executive cadre. He would further submit that in the contempt petition, the petitioner has accepted the fact that the order passed on 06/07/12/2010 by competent authority of Coal India Limited rejecting his case was communicated to him. He would further submit that once an order is passed on the basis of direction issued by Court, by contemnor No. 3 herein deciding case of the contempt petitioner on merits and if contempt petitioner is aggrieved against that order, he has to invoke the remedy available under the law for judicial review of that order. He would lastly submit that even if the order passed by respondent No. 3 is erroneous on merits, the contempt petition under Section 12 of the Contempt of Courts Act, 1971 read with Section 215 of the Constitution of India would not be maintainable in law and as such the rule issued against them deserves to be discharged and contempt proceedings be dropped. 8. I have heard petitioner in person and learned counsel for the respondents/contemnors and perused the record available with utmost circumspection. 9. It is well settled law, before a proceeding for contempt can succeed, it is of paramount importance to establish first, the service of the order of the Court said to have been disobeyed upon the person alleged to have committed contempt thereof, secondly the precise act of contempt, thirdly the precise responsibility of the contemnor in the act of contempt, and fourthly the date of the alleged contempt being subsequent to the service of the order said to have been disobeyed. These are the four indispensable requisites and failure to establish any one of them must mean dismissal of the petition for contempt. 10. In order to appreciate submission advanced at the bar, it would be proper to notice operative portion of the order complained of, dated 15/06/2010 passed by this Court in Writ Appeal which states as under: “11. ………Therefore, we set aside the impugned order dated 23/03/2009 passed by the learned Single Judge and without going into the merits regarding the service record of the appellant, we dispose of this writ appeal with a direction to the respondent authorities to consider the case of promotion of the petitioner with effect from the date of promotion of his juniors/contemporaries. ………Therefore, we set aside the impugned order dated 23/03/2009 passed by the learned Single Judge and without going into the merits regarding the service record of the appellant, we dispose of this writ appeal with a direction to the respondent authorities to consider the case of promotion of the petitioner with effect from the date of promotion of his juniors/contemporaries. Obviously while considering the promotion of the petitioner with effect from the date of promotion of his juniors/contemporaries, they will have to consider the provisions of the rules prevailing at the relevant time and whether the promotion was on the basis of seniority-cum-merit or seniority subject to the fitness or other criteria may also be seen while considering the promotion of the petitioner with retrospective effect.” 11. Thereafter, the petitioner made a representation to the Chairman, Coal India Limited vide Annexure C4 dated 16/08/2010 and communicated the order complained of. The operative portion of representation states as under: “8. That considering the totality of the facts and circumstances stated above, it is in the interest of justice, equity & fair play that the judgment dated 15/06/2010 passed by the learned Div. Bench of the Hon'ble High Court be given due regard by earlier compliance in literatim in an Hon'ble manner i.e. by way of consideration in the case of promotion in executive cadre (E2) retrospectively w.e.f. 1.5.1973 at par with Sri A.K. Shrivastava in the then scale of Rs.400 1250/(CMAL) who was about 8 months junior to me and retired from the rank of M2 from 30.6.2009 & subsequent promotionary benefits at par with A.K. Sinha, B.Sc. about two year junior to me & retired w.e.f. 31.8.2007 from the rank of M3 as CGM (Sales & Marketing) discipline from the scale of Rs.5130073000/(Revised) w.e.f. 1.1.2007, in the interest of justice. I refrain any earnestly request you sir to issue instructions to the authorities concerned for early compliance of the Court order/judgment dated 15.6.2010 passed in writ appeal No. 135 of 2009 as directed in the interest of justice.” 12. I refrain any earnestly request you sir to issue instructions to the authorities concerned for early compliance of the Court order/judgment dated 15.6.2010 passed in writ appeal No. 135 of 2009 as directed in the interest of justice.” 12. Upon receipt of the representation of the contempt petitioner along with copy of the order dated 15/06/2010 passed by this Court, contemnor No. 3 herein being the competent authority to consider the case of the petitioner considered as directed and passed the following order stating as under (Annexure C6): Coal India Limited Government of India Undertaking A Navratna Company “COAL BHAWAN” 10, NETAJI SUBHAS ROAD, KOLKATA 700001 Order No. CIL/C5A(i)/AKC/419 dt.6th/07 December 2010 In pursuance of the order dated 15/06/2010 passed in Writ Appeal No. 135 of 2009, (Shri A.K. Chhibber v. CIL & Ors) whereby the Hon'ble Division Bench of High Court of Chhattisarh, Bilaspur inter alia partly allowed the writ appeal directing the respondent authorities to consider the case of promotion of the petitioner with effect from the date of promotion of his juniors/contemporaries considering the provision of the rules prevailing at the relevant time, undersigned, being Director (Personnel & Industrial Relations), Coal India Limited the respondent No. 3 in the said Writ Appeal has examined the entire case of Shri A.K. Chhibber, including the several writ petitions, appeals arising therefrom, court orders passed in the related matters and the representation of the petitioner as also the prevailing practices at the relevant time and rules of the company in this regard and after due consideration and application of mind find that: 1. The claim of Sri Chhibber, the writ petitioner/appellant, regarding partly of his case with that of s/Sr. A.K. Shrivastava and A.K. Mitra is not tenable since both Sri Shrivastava and Sri Mitra were taken over form erstwhile coal companies in executive cadre while Sri Chhibber who was taken over in non executive cadre. 2. It reveals from records that Sri A.K. Chhibber, the petitioner/appellant herein, was initially employed on 15.04.1972 as Chemist purely on a temporary basis and was subsequently designated as Chemist in T&S GR.”C” and T&S grade B by the management of NCDC in 1978 he was promoted to T&S grade A by WCL where he continued to work till 31/12/1985. Upon formation of SECL as new company, Sri Chhibber became an employee of SECL from 1/1/1986. 3. Upon formation of SECL as new company, Sri Chhibber became an employee of SECL from 1/1/1986. 3. In 1992 Sri A.K. Chhibber moved High Court against his non-section/placement in Executive cadre by filing a writ petition before Hon’ble Jabalpur High Court which was disposed of vide order dated 3/5/1995 with directions to the respondents to consider the case of the petitioner in accordance with the rules applicable to the petitioner. In compliance thereof the respondent management constituted a special selection-cum-DPC but since the writ petitioner did not turn up before the said selection committee, his case could not be considered at that time. 4. Again, in terms of the directions dt. 11/7/1997 of the Hon'ble High Court of Madhya Pradesh at Jabalpur in MCC No. 634 of 1996 filed by Sri Chhibber seeking clarification of the order dated 03.05.1995 a special section-cum-DPC was constituted to consider the case of Sri A.K. Chhibber for his selection/promotion to executive cadre post. The written test was fixed on 26.09.1997 at SECL HQ, Bilaspur but again Sri Chhibber did not appear in the said written test. 5. Thereafter, Shri Chhibber filed another WP No. 1531/98 in the year 1998 seeking direction for implementation of the order passed by the Hon'ble High Court of MP in WP No. 4087/92. The Hon'ble Court passed order dtd. 05.12.2001 inter alia allowing the writ petition in part with directions to the respondents to consider the case of the petitioner for Executive Cadre E2 according to the position which existed before March 1976 without written test. The respondent company filed LPA No. 17 of 2002 against the order of Ld. Singe Bench which was dismissed and the order dated 05.12.2001 passed by the Hon'ble Single Judge attained finality. 6. In compliance of the order dtd. 12.03.2003 passed in LPA No. 17 of 2002, the Respondent company constituted another section committee and Sri Chhibber was advised to appear before the said Committee for interview on 18.06.2003. He appeared before the said Committee but declined to be interviewed for E2 grade, as such due to nonparticipation in the interview the committee did not find him fit for placement in executive cadre post. 7. The petitioner Sri Chhibber, filed contempt petition for alleged noncompliance of order of the Hon'ble Court and in compliance of the directions of the Hon'ble Court dt. 7. The petitioner Sri Chhibber, filed contempt petition for alleged noncompliance of order of the Hon'ble Court and in compliance of the directions of the Hon'ble Court dt. 12/8/2004, Coal India Limited constituted a selection committee that interviewed Sri Chhibber and based on the recommendations thereof, he was promoted to the post of Sales Officer, and posted as such in SECL vide order dated 10.01.2005. The petitioner Sri Chhibber had joined on the promoted post and has since superannuated from the services from MCL. 8. After joining on the promoted post, he had again filed WP No. 4765 of 2006 raising similar issues and claiming retrospective placement in E2 grade w.e.f. 1973 and all consequential promotions etc. as were sought in his earlier writ applications. The said WP was dismissed by the Hon'ble Chhattisgarh High Court vide order dated 23.03.2009. Thereafter, the petitioner Sri Chhibber had filed Writ Appeal No. 135 of 2009 against the order dated 23.03.2009, which was allowed in part by the impugned order dt. 15/06/2010. For the reasons mentioned above, the decision of CIL to promote Sri. A.K. Chhibber to E2 grade in the year 2005 is just and fair and no retrospective effect to the said promotion/placement in E2 grade from 1973 is justifiable in as much as firstly, the case of Sri A.K. Chhibberthe writ petitioner is distinctly different from that of S/Sri A.K. Shrivastava and A.K. Mitra for the reasons mentioned herein before and as such Sri Chhibber can not be considered for promotion/placement in E2 grade from 1973 AND secondly, thought the policy of Coal Indian Limited provides for all selections from non-executive to executive cadre in Sales & Marketing discipline, to which the petitioner belonged, only after notification of the posts and upon qualifying the written examination and interview, the management of CIL in due compliance of the directives given by Hon'ble High Court, gave repeated opportunities to Sri Chhibber for appearing in Selection-cum-DPCs and even constituted special DPCs for him, he refrained from appearing therein till 2004 when he was ultimately selected and promoted to E2 grade. For the reasons above mentioned, I do not find any merit in the representation and case of Sri. A.K. Chhibber Ex Sales Officer MCL and dispose it accordingly. (R. Mohan Das) Director (Personnel & Industrial Relations) Coal India Limited 13. For the reasons above mentioned, I do not find any merit in the representation and case of Sri. A.K. Chhibber Ex Sales Officer MCL and dispose it accordingly. (R. Mohan Das) Director (Personnel & Industrial Relations) Coal India Limited 13. The aforesaid order passed by the contemnor No. 3 was communicated to the contempt petitioner by Dy. General Manager, South Eastern Coal Fields Limited by memo dated 09/12/2010, which reads as under: SOUTH EASTERN COALFIELDS LIMITED SECL HQ, SEEPAT ROAD BILASPUR (CG) dtd. 09/12/2010 NO.SECL: BSP: EE: AKC/10: 3271 REGISTERED A/D POST To, Shri A.K. Chhibber S/o Shri K.N. Chhibber Retd. Sales Officer, MCL, C/o House of Late Ms. U. Chhibber Sr. Advocate 100 Teen Murty Chowk, Sunder Nagar, Raipur (CG)492013. Sub: Order No. CIL: C5A[1]/AKC/419 dated 06/07th December 2010 issued to Shri A.K. Chhibber, S/o Shri K.N. Chhibber, Ex-Sales officer, MCL under the signature of Director [P&IR], CIL, Kolkata. Dear Sir, Please find enclosed herewith an order No. CIL:C5A(1)/AKC/419 DATED 06/07th December 2010 issued to you under the signature of Director (P&IR), CIL, Kolkata. Please acknowledge receipt of the same. Encl: As above. Yours faithfully Dy. General Manager [P/EE] SECL Cc: D[P}, SECL for kind inf. pl. Cc: GM(P), CIL, for kind inf.Pl. Cc: GM [Legal], CIL Cc: Dy.GM[LEGAL], SECL 14. Thus from the aforesaid narration of the facts, it is quite vivid that the order passed by this Court dated 15/06/2010 in Writ Appeal No.135/2009 was duly communicated to the contemnors herein and contemnor No. 3 herein being the competent authority i.e. Director (Personnel & Industrial Relations), Coal India Limited passed an order considering the case of the petitioner as directed on 15/06/2010 and thereby rejected the petitioner's representation by order dated 67/12/2010, which the petitioner has filed along with this contempt petition. 15. After hearing petitioner in person and learned counsel for the respondents/contemnors and upon perusal of record, the following facts would emerge on the face of record: (i) That this Court by its order dated 15/07/2010, commanded the respondents therein/contemnors herein to consider the case of promotion of contempt petitioner with effect from the date when his juniors were considered and promoted in accordance with relevant Service Rule. (ii) That order complained of was duly communicated to the respondents/contemnors herein along with representation by the contempt petitioner. (ii) That order complained of was duly communicated to the respondents/contemnors herein along with representation by the contempt petitioner. (iii) The contemnor No. 3 being the competent authority considered the case of contempt petitioner and passed an order on merits on 67/12/2010 holding that he is not entitled for promotion at par with Mr. A.K. Shrivastava and Mr. A.K. Mitra for the reasons recorded in that order. (iv) Order dated 67/12/2010 passed by contemnor No. 3 was communicated to the contempt petitioner by contemnor No. 2. 16. At this stage, it would be opposite to notice Section 12(1) of the Contempt of Courts Act, 1971: “12. Punishment for contempt of court.(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both: Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. Explanation. An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.” 17. Section 2 of the Contempt of Courts Act, 1971 which lays down as follows: “2. Definitions In this Act, unless the context otherwise requires, (a) "Contempt of Court" means civil contempt or criminal contempt; (b) "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court; (c) "criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any Court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner; (d) "High Court" means the High Court for a State or a Union territory, and includes the Court of the Judicial Commissioner in any Union territory. 18. 18. (A) Section 2 of the Contempt of Courts Act, 1971 came to be considered by the Supreme Court in Dinesh Kumar Gupta v. United India Insurance Co. Ltd. & Ors, JT 2010 (12) SC 81, their Lordships held as under: “12.1…The Contempt of Courts Act, 1971 clearly postulates the existence of only the following preconditions before a person can be held to have committed civil contempt: (i) There must be a judgment or order or decree or direction or writ or other process of a court; or an undertaking given to a court; (ii) The judgment, etc. must be of the court and undertaking must have been given to a court; (iii) There must be a disobedience to such judgment, etc. or breach of such undertaking; (iv) The disobedience or breach, as the case may be, must be wilful.” (B) In the later part of judgment, it has further been held that in case of contempt of civil nature, it must be willful disobedience: “13. This now leads us to the next question and a more relevant one, as to whether a proceeding for contempt initiated against the appellant can be held to be sustainable merely on speculation, assumption and inference drawn from facts and circumstances of the instant case. In our considered opinion, the answer clearly has to be in the negative in view of the well-settled legal position reflected in a catena of decisions of this Court that contempt of a civil nature can be held to have been made out only if there has been a wilful disobedience of the order and even though there may be disobedience, yet if the same does not reflect that it has been a conscious and wilful disobedience, a case for contempt cannot be held to have been made out. In fact, if an order is capable of more than one interpretation giving rise to variety of consequences, non compliance with the same cannot be held to be wilful disobedience of the order so as to make out a case of contempt entailing the serious consequence including imposition of punishment. In fact, if an order is capable of more than one interpretation giving rise to variety of consequences, non compliance with the same cannot be held to be wilful disobedience of the order so as to make out a case of contempt entailing the serious consequence including imposition of punishment. However, when the courts are confronted with a question as to whether a given situation could be treated to be a case of wilful disobedience, or a case of a lame excuse, in order to subvert its compliance, howsoever articulate it may be, will obviously depend on the facts and circumstances of a particular case; but while deciding so, it would not be legally correct to be too speculative based on assumption as the Contempt of Courts Act, 1971 clearly postulates and emphasises that the ingredient of wilful disobedience must be there before anyone can be hauled up for the charge of contempt of a civil nature.” 19. In Noor Saba v. Anoop Mishra and another, (2013) 10 SCC 248 , their Lordships of the Supreme Court has clearly held as under: “14. To hold the respondents or anyone of them liable for contempt this Court has to arrive at a conclusion that the respondents have wilfully disobeyed the order of the Court. The exercise of contempt jurisdiction is summary in nature and an adjudication of the liability of the alleged contemnor for wilful disobedience of the Court is normally made on admitted and undisputed facts…………………………………….” 20. In light of the aforesaid principles of law laid down by their Lordships of Supreme Court, it has to be examined whether the Act of contemnors can be said to be wilful disobedience of order of this Court. 21. It is well settled that once an order is passed by the competent authority on the basis of the directions issued by the Court, even if the order is erroneous, it gives a fresh cause of action to aggrieved person to seek redressal in judicial forum in order to avail the opportunity of judicial review, but it cannot be considered to be wilful disobedience of an order requiring exercise of contempt jurisdiction under Section 12 of the Contempt of Courts Act, 1971. 22. 22. In J.S. Parihar v. Ganpat Duggar and others, (1996) 6 SCC 291 , their Lordships of the Supreme Court held that jurisdiction to consider the matter on merits cannot be exercised in the contempt proceeding. Paragraph-6 of the report states as under: “6.........It is seen that once there is an order passed by the Government on the basis of the directions issued by the court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the willful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the learned Single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act.” 23. In P.R. Toora v. Javed Choudhury & Ors., JT 1999 (10) SC 392, the Supreme Court reiterated the principle of law as under: “3. Learned Additional Solicitor General for the respondents states that the appropriate order in this connection is passed on 22nd November 1999 on the representation of the petitioner. If the petitioner has still any grievance against the said order he may pursue his remedy in accordance with law. These contempt proceedings are closed.” 24. In Lalith Mathur v. L. Maheswara Rao, (2000) 10 SCC 285 , their Lordships of the Supreme Court has clearly held that once the Court direction to consider the employee's representation was complied with and his representation was rejected on merits, contempt petition would not be maintainable. Paragraph-4 states as under: “4. The High Court in the writ petition had issued a direction for the consideration of the respondent’s representation by the State Government. This direction was carried out by the State Government which had considered and thereafter rejected the representation on merits. Paragraph-4 states as under: “4. The High Court in the writ petition had issued a direction for the consideration of the respondent’s representation by the State Government. This direction was carried out by the State Government which had considered and thereafter rejected the representation on merits. Instead of challenging the order in a fresh writ petition under Article 226, the respondent took recourse to contempt proceedings which did not lie as the order had already been complied with by the State Government which had considered the representation and rejected it on merits.” 25. Thus, guided by the principles of law laid down by their Lordships of the Supreme Court in above stated cases, it is quite vivid that the Court direction in Writ Appeal No. 135/2009 dated 15/06/2010 (A.K. Chibber v. Coal India Limited and others) to consider the case of petitioner at par with the petitioner's juniors was substantially complied with by the respondents/contemnors herein by rejecting the petitioner's case on merit, which was duly communicated to the petitioner, and if the petitioner is aggrieved against that order rejecting his case on merits, the remedy available to him would be to challenge that order in accordance with law and to seek judicial review of that order and correctness or otherwise of that order cannot be examined in this contempt proceeding. Thus, this is not a case where the rule issued by this Court under Section 12 of the Contempt of Courts Act, 1971 should be made absolute as the contempt petitioner has utterly failed to establish disobedience of the order complained of and further failed to establish that disobedience of the order was wilful. 26. Consequently, rule issued on 15/03/2011 is hereby discharged. The contempt petition is dismissed and contempt proceedings against the respondents No. 2 & 3/contemnors herein are hereby dropped. However, it is open to the contempt petitioner to question the legality and validity of the order dated 67/12/2010 in accordance with law.