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2015 DIGILAW 312 (GAU)

Hovuto Sema v. Imkonglembaao

2015-03-16

PRASANTA KUMAR SAIKIA

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JUDGMENT : Prasanta Kumar Saikia, J. 1. This proceeding has been initiated seeking following reliefs. In the premises aforesaid, it is most respectfully prayed that your Lordships would graciously be pleased to direct the respondents to show cause as to why proceedings for contempt should not be initiated against them and upon cause or causes being shown be pleased to proceed against the respondents in accordance with Sections 11 & 12 of the Contempt of Court's Act, 1971 read with Article 215 of the Constitution of India and the rules of this Hon'ble Court. I have heard Mr. A. Zhimomi, learned counsel for the petitioners. Also heard Mr. K. Sema, learned Additional Advocate General, Nagaland appearing for the alleged contemnors/State respondents. The facts, projected in this proceeding by the petitioners, in short, are that by its order dated 1st April, 2005 rendered in Civil Rule No. 116(K) of 1998, this Court directed the State/respondents to place the case of the petitioners before the particular Committee for consideration, for regularising their services within a period of 1 (one) month. 2. It was further directed therein that the case of the petitioners was to be considered by the Committee individually on the basis of seniority-cum-merit and in doing so, the committee shall adopt all positive approach, coupled with an empathy for each of the employees. The Committee was to submit its report within 2 (two) months. However, the entire process for regularisation of the services of the petitioners was to be completed within 4 (four) months there-from. 3. When the aforesaid order was not complied with, the petitioners once again approached this Court by filing a writ petition which was numbered as WP(C) No. 316(K) of 2005. While disposing the said writ petition, this Court vide its order dated 08.08.2006 directed the State/respondents to regularise the services of the petitioners in accordance with the relevant scheme meant for regularisation of the services of the employees and to pay lawful dues to the petitioners. Such exercise was also required to be carried out within 3 (three) months from the date of the order. 4. The order passed by this Court in WP(C) No. 316(K) of 2005, was duly communicated to the respondents with a request to carry out the direction rendered therein within the time so fixed by the aforesaid order. Such exercise was also required to be carried out within 3 (three) months from the date of the order. 4. The order passed by this Court in WP(C) No. 316(K) of 2005, was duly communicated to the respondents with a request to carry out the direction rendered therein within the time so fixed by the aforesaid order. In spite of above and despite a long period being over even after the dead line fixed by the Court to comply with such order, the State Respondents did nothing forcing the petitioners to approach the Court once again with the present proceeding urging the Court to punish the respondents since they flouted the order of the Court intentionally and willfully. 5. After the institution of present contempt proceeding, the respondent No. 1, 3, 4 and 5, by filing counter affidavit, have contested the claim in the contempt proceeding. In their counter affidavit, it was stated that there was no willful and intentional disobedience to the order passed by the learned Single Judge of this Court in Civil Rule No. 116(K) of 1998 and in WP(C) No. 316(K) of 2005. Rather, the circumstances beyond their control prevented them from implementing the order(s) of the Court. 6. In that connection, in Paragraph 7 of the counter affidavit, filed by the respondent No. 3, it has been stated that the petitioners were not appointed against sanctioned posts and, therefore, regularisation of their services were found not possible unless regular sanctioned posts were created. Since there was no sanctioned post and since there was a ban in creation of new post by the Government, the respondents could not comply with the order(s) of the Court. 7. In the meantime, on 01.03.2006, the Referral Hospital, where the petitioners worked, was handed over to a private company, viz. Christian Institute of Health Science & Research (in short, 'CIHSR'). Having found no other way out, the respondents had worked out a Voluntary Retirement Scheme (in short, VRS) keeping in mind that petitioners have served over a long period of time in the department. The said VRS was accepted by 153 work-charged employees but the remaining employees including the present petitioners had declined to accept the offer. 8. In paragraph 8 of the second additional affidavit filed by the respondent No. 3, it has been stated that there is no Engineering Division under the Health & Family Welfare Department. The said VRS was accepted by 153 work-charged employees but the remaining employees including the present petitioners had declined to accept the offer. 8. In paragraph 8 of the second additional affidavit filed by the respondent No. 3, it has been stated that there is no Engineering Division under the Health & Family Welfare Department. Therefore, existing Engineering Wing under the Directorate of Health & Family Welfare has been rendering technical supervision on need basis on minor civil work that is taking place in health units. 9. It has further been alleged that the respondent No. 1 was not aware of judgments passed by this Court in Civil Rule No. 116(K) of 1998 and WP(C) 316 of 2005 till the month of April, 2007. Under such circumstances, the respondents were forced to file two separate appeals before the Division Bench against the judgment and order dated 01.04.2005 passed in Civil Rule No. 116(K) of 1998 as well as order dated 08.03.2006 passed in WP(C) 316(K) of 2005, same being WA No. 39(K) of 2007 respectively. 10. Since both the appeals were preferred beyond the period fixed by law of limitation, the respondents also filed applications seeking condonation of delay in preferring such appeals. Applications seeking condonation of delay in preferring appeal against the order dated 08.03.2006 in WP(G) 316(K) of 2005, was, however, dismissed as stated by the respondent No. 3 in his affidavit dated 04.11.2008 at paragraph 07. 11. In his affidavit dated 20.11.2014 at paragraph C and D, it has also been stated that application seeking condonation of delay in preferring appeal against the order dated 08.03.2006 in Civil Rule No. 116(K) of 1998 was also dismissed vide order dated 28th January, 2009 in Civil Misc. Case No. 241/2007. Being dissatisfied with the order dated 28th January, 2009 in Civil Misc. Case No. 241/2007, the respondents approached Apex Court having filed SIP(C) Nos. 14098 and 14099 of 2009. 12. But the SLP was dismissed by order dated 9th July, 2009. Citing all those reasons and difficulties, the State respondents summit that under those circumstances, the contesting respondents could not regularise the services of the petitioners and as such, the respondents are to be exonerated for not complying with the direction in order dated 01.04.2005 in Civil Rule No. 116/1998 as well as order dated 08.03.2006 in WP(C) 316(K)/2005. 13. Citing all those reasons and difficulties, the State respondents summit that under those circumstances, the contesting respondents could not regularise the services of the petitioners and as such, the respondents are to be exonerated for not complying with the direction in order dated 01.04.2005 in Civil Rule No. 116/1998 as well as order dated 08.03.2006 in WP(C) 316(K)/2005. 13. However, by filing rejoinder affidavit, the petitioners who are all working in the establishment of the Executive Engineer (Housing) Referral Hospital, Dimapur, Nagaland, have stated that the aforesaid plea of contemnors, particularly, contemnor No. 3, is unsustainable since there are instances to show that services of a good number of employees, similarly situated to the petitioners and who are junior to the petitioners were regularized in the meantime. 14. This Court taking into account of all the facts aforementioned was pleased to come to a conclusion that prima facie the contemnors committed the offence of contempt of Court and, therefore, they were directed to show-cause as to why they should not be punished for committing offence aforementioned vide order dated 16.09.2014. The relevant part is reproduced below:- "The aforesaid pleas on the part of the respondents prima facie make them liable for appropriate penalty for violation of aforesaid orders of this Court. The respondents having failed in their pursuits to get the order passed by the learned Single Judge modified and/or altered, cannot now take the plea that the said order is not implementable, on the above-mentioned ground. In view of above, contempt of Court proceeding stands initiated against each one of the respondents, making it returnable within 20th December, 2014. By the next date fixed, they will file individual affidavits as to why any of the penalties prescribed in the Contempt of Court's Act, 1971 shall not be inflicted against each one of them." 15. Being so required, the respondent Nos. 1, 3, 4 and 5 had filed additional counter-affidavit stating that there was no willful and intentional disobedience to the order passed by the learned Single Judges of this Court, however admitting that there was delay in implementing the Court's order, it was stated that such delay was for reasons not within the control of contesting respondents herein. 16. 1, 3, 4 and 5 had filed additional counter-affidavit stating that there was no willful and intentional disobedience to the order passed by the learned Single Judges of this Court, however admitting that there was delay in implementing the Court's order, it was stated that such delay was for reasons not within the control of contesting respondents herein. 16. When respondent No. 1 received a letter from the respondents for compliance of the direction rendered in the judgments therein, since the creation of the posts is not within the jurisdiction of the respondent No. 1, the later had done everything possible urging the Government to create required number of posts for due compliance of the directions issued by this Court in the judgments including the order dated 16.09.2014, passed in the proceeding in hand. 17. On the receipt of those communications, the Government of Nagaland, Health and Family Welfare Department issued a letter dated 16th of October, 2014 conveying the approval of the Government for creation of 19 supernumerary posts in various categories under the Health and Family Welfare Department so as to regularise the services of the petitioners. Accordingly, vide order dated 20.10.2014 the services of the petitioners herein had been regularised. 18. The respondent No. 3, 4 and 5 also advanced similar submissions. However, respondent No. 4 and 5 further stated that they were not aware of any employee junior to the petitioners being regularised in the meantime since such matter was not brought to the knowledge of the petitioners. The relevant part is reproduced below:- "3. That, in view of the above statements the deponent respectfully submit that the petitioners cannot claim the same benefit of those whose services were regularised by the PWD (Housing) in terms of the prevailing laid down rules." 19. In view of above, the respondent had prayed for dismissal of the present proceeding since the respondents have never willfully and intentionally violated the order of the Court. 20. Learned counsel for the petitioners submits that the submissions, advanced from the side of the State Respondents further show that the contesting State-Respondents had very willfully and very intentionally flouted, the Court's order and such state of affair are apparent from their counter affidavit since they tried to justify non-compliance of the directions rendered in WP(C) 316(K) of 2005 and Civil Rule No. 116(K) of 1998. 21. 21. In that connection, it has been submitted that the order(s) of this Court under which the respondents were to regularise the services of the petitioner attained finality since the appeal against such order(s) stood dismissed long ago and since the special leave application against the order 28th January, 2009 passed in WA No. 39(K) of 2007 had already been rejected by the Apex Court of the country. 22. Since those orders attained finality, it does not lie in the mouth of the respondents to show that the orders are not implementable one. In that connection, learned counsel for the petitioner relied on the decisions of the Apex Court in the case of Commissioner, Karnataka Housing Board Vs. C. Muddaiah, (2007) SCC 689, Union of India Vs. Subedar Devassy PV reported in (2006) 1 SCC 613 , Muninderjit Singh Bitta Vs. Union of India reported (2012) 1 SCC 273 , Ishwar Dutt Vs. Land Acquisition Collector reported in (2005) 7 SCC 190 , Madan Mohan Pathak Vs. Union of India reported in (1978) 2 SCC 50 and Union of India Vs. Madras Telephone SC & ST Social Welfare Association reported in (2006) 8 SCC 662. 23. In Madan Mohan Pathak (supra) & Subedar Devassy PV (supra), it has been held that while dealing with contempt application, Court is concerned only with the question whether the earlier decision has attained finality or not. It is not permissible to examine the correctness of the earlier decision and to take a different view. In Madan Mohan Pathak (supra) and Union of India Vs. Madras Telephone (supra) similar view was rendered. 24. In Maninder Singh Bitta (supra), it has been held that lethargy, ignorance, official delay and absence of motivation can hardly be offered as a defense in action for contempt. Since Government instrumentalists must act as expeditiously as per the order of the Court, unless same is reversed/modified/altered by the higher Court. 25. Being so, none of the submissions, advanced from the side of the contesting respondents could work in their favour to give them any respite in an action initiated against them under the Contempt of Court's Act. 26. The fact that the respondents had complied with the order after getting thrashing from this Court on 16.09.2014 clearly demonstrates that they had willfully and intentionally kept the matter pending for a period close to a decade. 27. 26. The fact that the respondents had complied with the order after getting thrashing from this Court on 16.09.2014 clearly demonstrates that they had willfully and intentionally kept the matter pending for a period close to a decade. 27. On the other hand, the learned Addl. Advocate General submits that there was no intentional and willful violation of the order of the Court. In fact, despite there being enormous hurdle in regularizing the services of the petitioners, the Government had regularized the services of the petitioners having created supernumerary post. This only shows that the contemners and the Government held the Court in high esteem and, therefore, the present proceeding is required to be dropped. 28. Further contention of the Additional Advocate General is that if anybody feels aggrieved by the order under which such supernumerary post had been created for the purpose of regularisation of the services of the petitioners, they can approach appropriate forum with an appropriate application. But in the present contempt proceeding they cannot agitate the order in question creating supernumerary post not in consonance with the direction rendered by this Court. 29. In support of such contention, the Addl. Advocate General relies on the decision of the Apex Court rendered in J.S. Parihar Vs. Sana Path Duger & Ors. reported in (2007) 1 SCC 547 as well as in the decision of State of Haryana Vs. M.P. Mohla, reported in (1996) 6 SCC 291 . 30. I have considered the rival submissions having regard to the pleaded case of the parties. There was no quarrel over the fact that the judgments and orders rendered in Civil Rule No. 116(K) of 1998 and WP(C) No. 316(K) of 2005 had attained finality long ago under which the respondents were to regularize the services of the petitioners. It is also found apparent from the pleadings of the parties that those orders were implemented only on 20.10.2014. 31. Thus, it is quite apparent that there was inordinate delay in complying with the order passed by this Court which is also admitted by the answering respondents in their additional affidavit. It also cannot be denied that as the things stand today, it is not open for the respondents to question the correctness of the order rendered in those proceedings since those orders attained finality long back. It also cannot be denied that as the things stand today, it is not open for the respondents to question the correctness of the order rendered in those proceedings since those orders attained finality long back. Now, it needs to be seen that if non-implementation of order(s) of this Court was intentional and willful. 32. It is worth noting here that order(s) in Civil Rule No. 116(K) of 1998 and WP(C) No. 316(K) of 2005 were complied with only on 20.10.2014, and that too, when this Court passed stricture on the contesting respondents on 16.09.2014 asking them to show cause as to why the contesting respondents should not be punished for alleged intentional and willful disregard to the order rendered in Civil Rule No. 116(K) of 1998 and WP(C) No. 316(K) of 2005. 33. The above revelations speak loud and clear that the respondents are sitting tight over the matter for a period close to 10 years without doing anything to comply with the direction rendered by this Court in the proceedings aforesaid. In my considered opinion, things would have remained in the same stage for another couple of years had this not passed the order on 20.10.2014. 34. These are, in my firm opinion, the prolific testimonies to the fact that there was no sincere attempt whatsoever on the part of the state respondents to comply with the Court's order aforementioned. In fact, they treated orders aforementioned with all disdain and contempt at their disposal. Thus, there cannot be escape from the conclusion that the contesting contemnors were guilty of offences under Sections 11 and 12 of the Act. 35. One may note here that in their additional affidavit to rejoinder affidavit of the petitioners, respondents No. 4 & 5 had stated that they did not know about some Work Charged employee's junior to the petitioners having been regularized in the meantime. They came to know such a state of affair after going through the rejoinder affidavit of the petitioners. They further contend that such regularization being not in tune with procedures cannot give any cause of action to the petitioner. 36. Unfortunately, such a stand sounds pretty hallow which seems to have advanced just to cover up the lapses which contesting respondents in carrying out the order of this Court which attained finality long ago. They further contend that such regularization being not in tune with procedures cannot give any cause of action to the petitioner. 36. Unfortunately, such a stand sounds pretty hallow which seems to have advanced just to cover up the lapses which contesting respondents in carrying out the order of this Court which attained finality long ago. In my opinion, acceptance of such a claim would tantamount to accepting a claim where the right hand is found saying that it did not know what left hand is doing. 37. In view of the aforesaid discussions, I am of the opinion that the contesting respondents are guilty of offence under Section 12 of the Contempt of Courts Act and as such, they are liable to be punished. Consequently, the respondents are convicted of aforesaid offence. 38. However, considering the fact that they have tendered unconditional apology, I find it necessary to accept the same cautioning them to be careful in future instead of subjecting them to any other punishments. 39. Accordingly, on accepting the apology, tendered by the respondents, they are cautioned to be careful in future. 40. This proceeding in so far respondent Nos. 1, 3, 4 and 5 stands disposed of. 41. List this matter on 11.04.2015 for further order, in so far other respondents are concerned. 42. Return the record to the Registry at Kohima. Send copy of this order to the Chief Secretary of Government of Nagaland for information.