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2015 DIGILAW 128 (GAU)

Pongathsi Sangtam v. J. Alam

2015-02-05

A.K.GOSWAMI

body2015
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. I. Longchar, learned counsel for the petitioner. Also heard Mr. K. Sema, learned Additional Advocate General, Nagaland appearing for respondent Nos. 1, 2 and 4 and Mr. Yangerwati, learned counsel appearing for respondent Nos. 3 and 5. This contempt application under Sections 11 and 12 of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution of India is filed, alleging violation of the order of this Court dated 25.07.2011 passed in WP(C) No. 187(K)/2009. 2. From the perusal of the judgment rendered in WP(C) No. 187(K)/2009, it appears that the writ petition was filed by the present petitioner, who is the widow of late Atsase Sangtam, who was initially appointed as Stenographer Grade-III on contract basis by an order dated 12.09.1996 in the scale of pay of Rs. 1300-2570/- pm plus all other allowances as are admissible under the Rules. The said contract appointment was extended from time to time and later on, her husband was appointed as Stenographer Grade-III on a fixed pay of Rs. 3,500/- p.m. w.e.f. 15.10.2002. The petitioner's husband continued to render his service till he died on 23.06.2008. 3. A perusal of the said order also goes to show that argument was advanced on behalf of the writ petitioner that under the provisions of Central Civil Services (Extraordinary Pension) Rules, 1972 [for short, "the CCS (Extraordinary Pension) Rules"], persons appointed on fixed pay are also entitled to Extraordinary Pension and there is no bar on payment of such pension although her husband died while serving as contract appointee on a fixed pay. 4. In the affidavit that was filed by the State respondents, it was asserted that as the husband of the petitioner was not holding any substantive post, he was not eligible for any pension as per Rule 2 of the Central Civil Services (Pension) Rules, 1972 [for short, "the CCS (Pension) Rules"]. However, there was no mention in the said affidavit about the claim of the petitioner under the CCS (Extraordinary Pension) Rules. 5. During the course of hearing of the writ petition, the learned Additional Advocate General, Nagaland made a categorical submission that while the Government could not pay family pension under the CCS (Pension) Rules, the Government may consider the entitlement of the petitioner for payment of Extraordinary Pension after examining the CCS (Extraordinary Pension) Rules. 5. During the course of hearing of the writ petition, the learned Additional Advocate General, Nagaland made a categorical submission that while the Government could not pay family pension under the CCS (Pension) Rules, the Government may consider the entitlement of the petitioner for payment of Extraordinary Pension after examining the CCS (Extraordinary Pension) Rules. He had also submitted that the question of ex-gratia payment to the petitioner was under consideration of the Government. 6. The learned counsel appearing for the petitioner had also conceded that the petitioner was not entitled to family pension under the CCS (Pension) Rules. 7. After noticing the submissions of the learned counsel for the parties, this Court disposed of the said writ petition i.e. WP(C) No. 187(K)/2009 by an order dated 25.07.2011, directing the State respondents, more particularly, respondent Nos. 2 and 3 i.e. the Commissioner & Secretary to the Government of Nagaland, Personnel & Administrative Reforms Department, Kohima and the Commissioner & Secretary to the Government of Nagaland, Home Department, Secretariat Administrative Branch 'A', Kohima to finalise the payment of ex-gratia to the petitioner as expeditiously as possible within a period of 3(three) months from the date of receipt of the order. The said respondents were also directed to consider and pass necessary order in regard to payment of extraordinary pension as per petitioner's entitlement and as per the provisions under the CCS (Extraordinary Pension) Rules within a period of 6 (six) months from the date of receipt of the certified copy of the order. 8. On 21.01.2012, the Home Commissioner, Government of Nagaland passed the following order:- "No. SAB-12/24/2009: In pursuance to the Hon'ble Gauhati High Court Judgment & Order dated 25.07.2011 passed in WP(C) No. 187(K) of 2009 an Extraordinary Pension is hereby granted to Smti. Pongathsi Sangtam, wife of Late Atsase Sangtam, Stenographer Grade-III who was on fixed pay in the Home Department and died on 23.06-2008 near the Secretariat Complex in an accident while on bona fide Government duty as per Rule 2 of the Central Civil Service (Extraordinary Pension) Rules. The quantum of extraordinary pension is fixed at 40% of the basic pay subject to a minimum of Rs. 1,650/- as provided under the Central Civil Service (Extraordinary Pension) Rules. This has the approval of the P&AR Department vide UO No. 395 dated 16.12.2011." 9. The quantum of extraordinary pension is fixed at 40% of the basic pay subject to a minimum of Rs. 1,650/- as provided under the Central Civil Service (Extraordinary Pension) Rules. This has the approval of the P&AR Department vide UO No. 395 dated 16.12.2011." 9. A copy of the said order was also forwarded to the Accountant General, Nagaland, Kohima. Later on, by a covering letter dated 27.07.2012 issued by the Accounts Officer (Pension) addressed to the Secretary (Home), Government of Nagaland, Kohima, pension documents were returned back. The said letter is quoted hereinbelow:- "No. Pen/136/12-13/953 Dated: 27.07.2012 To, The Secretary (Home), Government of Nagaland, Kohima Sub: Returning of pension documents in r/o. Lt. Atsase Sangtam, Ex. Steno Sir, In inviting a reference to your letter No. SAB (A) 12/24/2009/153, dt. 02.05.2012, I am to state that on scrutiny of the case the following points has been observed that:- 1. Lt. Atsase Sangtam was appointed as casual Steno on fixed pay @ 3500/- pm. 2. Service was extended on yearly basis. 3. No regularization/observation order into permanency was enclosed. In this connection, he was not entitled for any pensionary benefit nor any terminal gratuity. Therefore, this office is returning all the pension documents for necessary action at your end. Yours faithfully, Accounts Officer (Pension)". 10. Mr. Longchar, learned counsel for the petitioner has submitted that the petitioner had since been paid ex-gratia in terms of the order of this Court dated 25.07.2011. He has, however, submitted that by not regularizing the services of the husband of the petitioner while passing the order dated 21.02.2012, the respondents have committed deliberate and willful violation of the order of this Court dated 25.07.2011 inasmuch as, because of non-regularization of service of the husband of the petitioner, the pension papers of the petitioner's husband were returned by the office of Sr. Dy. Accountant General (A&E), Nagaland, Kohima. It is submitted by Mr. Longchar that the letter dated 21.01.2012 is a mere pretence of compliance of order of this Court dated 25.07.2011, while in reality, not giving any benefit to the petitioner. 11. Omission to take steps as pointed out by the office of the Sr. Dy. Accountant General (A&E) in the light of the letter dated 27.07.2012 before the order dated 21.01.2012 was issued, establishes the contemptuous conduct of the respondents for which they are liable to be punished, he submits. 12. Mr. 11. Omission to take steps as pointed out by the office of the Sr. Dy. Accountant General (A&E) in the light of the letter dated 27.07.2012 before the order dated 21.01.2012 was issued, establishes the contemptuous conduct of the respondents for which they are liable to be punished, he submits. 12. Mr. K. Sema, learned Additional Advocate General, Nagaland appearing for the contemnors has submitted that there is no violation of the order of this Court, much less willful and deliberate violation. According to him, after considering the relevant Rules, the order dated 21.01.2012 was passed by the Home Commissioner, Nagaland granting Extraordinary Pension to the petitioners. While conceding that the pension papers of the husband of the petitioner were returned back by the office of the Sr. Dy. Accountant General (A&E) alongwith the letter dated 27.07.2012 on the grounds narrated therein, the learned Additional Advocate General submits that in contempt jurisdiction, this Court may not decide the correctness or otherwise of the order passed by the Home Commissioner dated 21.01.2012 or the stand taken by the office of the Accountant General while returning the pension documents. It is submitted by him that with the issuance of the letter dated 27.07.2012, a fresh cause of action had arisen, which can be adjudicated only in an appropriate proceeding and not in a contempt application. Accordingly, he submits that this contempt application has no merit and is liable to be dismissed. 13. Mr. Yangerwati, learned counsel appearing for respondent Nos. 3 and 5, submits that pension papers were rightly returned back to the Secretary (Home) Government of Nagaland and such course of action adopted by the respondent Nos. 3 and 5 did not, in any way, violate the mandate of the order dated 25.07.2011. 14. I have considered the submissions made by the learned counsel for the parties and have perused the materials on record. 15. What were the directions of this Court in the judgment and order dated 25.07.2011 in WP(C) No. 187(K) of 2009 are already noticed. In terms of the said judgment, case of the petitioner for receipt of ex-gratia was duly considered and Mr. Longchar has submitted that the petitioner had received the ex-gratia payment. The other direction in the said order was with reference to consideration and passing of necessary order relating to payment of Extraordinary Pension under CCS (Extraordinary Pension) Rules. 16. In terms of the said judgment, case of the petitioner for receipt of ex-gratia was duly considered and Mr. Longchar has submitted that the petitioner had received the ex-gratia payment. The other direction in the said order was with reference to consideration and passing of necessary order relating to payment of Extraordinary Pension under CCS (Extraordinary Pension) Rules. 16. On such consideration, the Home Commissioner has passed the order dated 21.01.2012. By the said order, the petitioner was granted Extraordinary Pension, fixing such quantum at 40% of the basic pay subject to a minimum of Rs. 1,650/- as provided under CCS (Extraordinary Pension) Rules. In terms of the said order, the petitioner would have been entitled to Extraordinary Pension. However, the pension papers of the husband of the petitioner were returned back on the grounds that (i) the deceased was appointed as a casual Stenography on fixed pay, (ii) his service was extended on yearly basis and (iii) no order of regularization/absorption (wrongly typed as observation) was enclosed therewith. 17. In a proceeding for contempt, the Court has to decide as to whether there was any deliberate and willful violation of an order of the Court and if any contempt was committed, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties. This Court, therefore, in this contempt proceeding, will not go into the questions raised by Mr. Longchar that as a condition precedent for passing the order dated 21.01.2012, the contemnor Nos. 1, 2 and 4 ought to have passed an order of regularization granting scale of pay to the husband of the petitioner. This Court will also not express any opinion on merits on the contents of the letter dated 27.07.2012 as to whether the officer of the Sr. Dy. Accountant General (A&E), Nagaland was justified in returning the pension papers of the husband of the petitioner. Having regard to the directions issued by this Court, it appears to this Court that the case of the petitioner was duly considered and the Home Commissioner had passed the order dated 21.01.2012 granting extraordinary pension to the petitioner. The Court is unable to accept the submission of Mr. Having regard to the directions issued by this Court, it appears to this Court that the case of the petitioner was duly considered and the Home Commissioner had passed the order dated 21.01.2012 granting extraordinary pension to the petitioner. The Court is unable to accept the submission of Mr. Longchar that such an order is passed only towards purported compliance of the order of this Court and not in the spirit of the order of this Court. I am of the considered opinion that in view of the conflicting stand of the respondents herein, a fresh cause of action has arisen for adjudication. 18. On an overall consideration of the materials on record, I am of the considered opinion that no case is made out for holding the respondents guilty of contempt for violation of the order of this Court dated 25.07.2011. However, I leave it open to the petitioner to pursue such remedy as may be available in law for ventilating her grievances. The contempt petition stands disposed of.