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2015 DIGILAW 800 (HP)

Avinash Chauhan v. P. C. Dhiman

2015-07-02

DHARAM CHAND CHAUDHARY, MANSOOR AHMAD MIR

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Judgment : Dharam Chand Chaudhary, Judge Complaint herein is that the respondents have failed to implement the judgment dated 9.12.2013, passed by a Division Bench of this Court in CWP No.7674 of 2013, in letter and spirit, despite having been directed to implement the same repeatedly. They allegedly have shown scant regard to the judgment passed by this Court and thereby undermined the majesty and dignity of this Court, hence rendered themselves liable for being punished for the contempt of this Court. 2. Shri Piar Singh, father of the petitioner, was working as PET in the Education Department of Himachal Pradesh. He died in harness in the year 2006. The qualification of the petitioner is plus two. Besides, he did degrees in Bachelor of Physical Education (BPE) and Master of Physical Education (M.P. Ed.). He made an application, seeking appointment on compassionate ground commensurate with his educational qualification in the year 2006 itself. The same was considered and rejected. Consequent upon the issuance of communication OM No. EDN-H(1)(b(4)241/2004-05- Comp. Appt. dated 20.10.2012 (Annexure P-15 to the writ petition) qua rejection of his application, Deputy Director Higher Education, Bilaspur, informed the petitioner, vide letter dated 21.11.2012 Annexure C-3 to this petition that in view of income of his family as Rs.63,000/- per annum i.e. beyond the income criteria fixed by the Government under the Scheme to make appointment on compassionate ground, his application was rejected. 3. The above decision came to be challenged by the petitioner in CWP No.7674/2013. A division Bench of this Court has allowed the writ petition after taking into consideration the given facts and circumstances and also the law applicable with the following observations: “8. If that be the sole ground for rejection, in the circumstances, we quash and set aside Annexures P-15 and P-16 and hold that two orders do not detail the facts holding that the income of the petitioner is Rs.63,000/- (Annexure P-16), in fact we find Annexure P-16 to be a non-speaking and terse order without in any manner forms any ground for decision. Writ petition is allowed. A direction is issued to the respondents to consider the application of the petitioner in accordance with the policy prevalent at the time when the father of the petitioner died in terms of the law supra. 4. Writ petition is allowed. A direction is issued to the respondents to consider the application of the petitioner in accordance with the policy prevalent at the time when the father of the petitioner died in terms of the law supra. 4. As a matter of fact, the action of the respondents to take into consideration the amount received by the mother of the petitioner by way of retiral benefits, including pension, for the purpose of computation of annual income of the family has been quashed and set aside by this Court in the judgment supra with a direction to the respondents to consider the application of the petitioner in accordance with the policy prevalent at the time when the father of the petitioner died and in terms of the law discussed in the judgment. 5. When the respondents failed to implement the judgment passed by this Court, the petitioner filed Contempt Petition (C) No.121/2014 against them. The same was disposed of vide order dated 5.5.2014 Annexure C-8, which reads as follows: “This contempt petition is disposed of by directing the respondents to comply with the Court directions dated 9.12.2013, passed in CWP No.7674 of 2013, within six weeks, if not already complied with and report compliance before the Additional Registrar (Judicial). 2. The Registry to convey the order to the respondents and also furnish the copy of the same to the learned Advocate General. The petition stands disposed of.” In compliance to the orders so passed in the Contempt Petition, the 3rd respondent has filed affidavit, stating therein that the Administrative Department had taken up the matter with the Finance Department for consideration and the Finance Department has found the income of the family of the petitioner at the time of death of his father as Rs.1,19,034/- per annum. Therefore, the petitioner was not found entitled to employment on compassionate ground. He was informed about the decision so taken by the respondents vide letter dated 25.3.2014 Annexure C-9 (colly). This led in filing another Contempt Petition (C) No. 283/14. The same was also disposed of on 13.8.2014 vide order Annexure C-10, which reads as follows: “Issue notice. J.K. Verma, learned Deputy Advocate General waives notice on behalf of the respondents. 2. He was informed about the decision so taken by the respondents vide letter dated 25.3.2014 Annexure C-9 (colly). This led in filing another Contempt Petition (C) No. 283/14. The same was also disposed of on 13.8.2014 vide order Annexure C-10, which reads as follows: “Issue notice. J.K. Verma, learned Deputy Advocate General waives notice on behalf of the respondents. 2. This contempt petition is disposed of by directing the respondents to comply with the Court directions, dated 9th December, 2013, passed by this Court in CWP No. 7674 of 2013, within a period of six weeks, if not already complied with and report compliance before the Additional Registrar (Judicial). 3. The Registry to convey the order to the respondents and also furnish the copy of the same to the learned Advocate General. The petition stands disposed of alongwith pending application.” 6. Consequent upon the order ibid, the 1st respondent passed the order dated 10.11.2014 Annexure C-11. A perusal thereof reveals that the said respondent, after taking note of the operative portion of the judgment rendered by this Court in CWP No.7674 of 2013 and also the opinion obtained from the Finance Department, has concluded that case of the petitioner does not fall in indigent circumstances nor does it fulfill the financial/income criteria fixed by the Govt. in the year 2006. The claim of the petitioner for appointment on compassionate ground has, therefore, been rejected. 7. It is seen from the Order Annexure C-11 that respondent No.1 on the advice of Finance Department has included the amount of pension in the income of the family which as per the judgment passed in CWP No.7674/2013 could have not been included. 8. The petitioner filed CMP No.18778 of 2014 in Contempt Petition (C) No.283/2014 supra, with the submissions that the respondents have not complied with the order passed by this Court despite repeated directions. As per the orders passed in this application on 1.12.2014 and 1.1.2015, the respondents were directed to comply with the directions issued by this Court. Anyhow, the application came to be dismissed vide order Annexure C-13, of course with liberty reserved to the petitioner to file a fresh contempt petition. 9. It is in this backdrop, the present, i.e the 3rd Contempt Petition, came to be filed against the respondents-contemnors. 10. Anyhow, the application came to be dismissed vide order Annexure C-13, of course with liberty reserved to the petitioner to file a fresh contempt petition. 9. It is in this backdrop, the present, i.e the 3rd Contempt Petition, came to be filed against the respondents-contemnors. 10. Respondent No.1 vide order dated 21.5.2015, passed in this petition, was directed to comply with the directions contained in judgment dated 9.12.2013 passed in CWP No.7674/2013 and in default to appear in person before the Court on 18.6.2015. On the date so fixed, neither compliance report was filed nor 1st respondent appeared in person before this Court. 11. Learned Advocate General has pointed out from the record that by passing the order Annexure C-11 by the 1st respondent, the judgment stated to have been violated, stands complied with. 12. We have considered the matter in the light of the material placed on record and the arguments addressed on both sides. 13. The 1st respondent has rejected the application of the petitioner for appointment on compassionate ground purely on income criteria on the advice obtained from the Finance Department. In the order Annexure C-11, the income of the family of the petitioner finds mention as Rs.1,19,034/-. The order is silent as to on what basis the income of the family of the petitioner was computed as Rs.1,19,034/- However, the recitals therein that the compassionate employment can only be given where the family of the deceased servant is left in indigent circumstances and that the benefit received by the family on account of family pension and other retiral benefits also needs to be taken into consideration while computing the income of the family of the petitioner, leads to the only conclusion that the income of the family from pensionary benefits has also been included to compute the annual income, because otherwise there was no occasion for the respondents to have computed the income of the family of the petitioner as Rs.1,19.034/-, for the reasons that at the time of death of Shri Piar Singh, the father of the petitioner, the income of the family of the petitioner from all sources was Rs.11,500/- per annum and by including the amount received by way of pension therein, it was Rs.96,000/- per annum. It is so established on record from the perusal of certificates dated 3.10.2006 and 30.10.2006, Annexures C-1 and C-2, respectively. 14. It is so established on record from the perusal of certificates dated 3.10.2006 and 30.10.2006, Annexures C-1 and C-2, respectively. 14. The order Annexure C-11 further reveals that the manner in which the respondent No.1 has rejected the application of the petitioner amply demonstrates that the said respondent has sit over the judgment of this Court as an appellate authority and thereby not only surpassed the judgment in question, but also undermined the dignity and majesty of this Court. It is worthwhile to mention here that an order passed by a Court of law may be illegal, but still the same is binding on the parties to a lis, until and unless it is set aside by a competent Court having jurisdiction over the matter. It is not open to the respondent-contemnor to justify his/her action in not complying with the Court’s order on the basis of any new contention on merits. It is well settled at this stage that unless and until the order of the Court about which the non-compliance is complained, is held to be without jurisdiction or void ab initio by a competent Court having jurisdiction over the matter, the parties thereto are bound to comply with it in letter and spirit, even though it may be illegal. It is not open to the respondent-contemnor to justify his/her contumacious conduct on the basis of some new contentions contrary to the judgment complained to be violated. 15. If not shocking, it is painful to point out that despite the findings recorded by a Division Bench of this Court in its judgment rendered on 9.12.2013 in CWP No.7674/2013 that the amount received by the family under family pension scheme, gratuity under the Payment of Gratuity Act and the provident fund paid under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, cannot be made the basis for denying appointment on compassionate ground, the 1st respondent on the advice of the Finance Department while computing the annual income of the family of the petitioner has again included therein, pensionary benefits received by his mother and rejected the application. As a matter of fact, rejection of the application of the petitioner by the respondents on the same ground and the decision so taken by them conveyed to him vide Annexure-16 to the writ petition has been held illegal by the Division Bench while allowing the writ petition holding the order Annexure P-16 as non-speaking and terse order. 16. Taking again a similar decision contrary to the judgment of this Court is nothing else but a contumacious conduct attributed to respondent No.1 and also respondents No.2 and 3 to disgrace the judgment in question. 17. The judgment is clear and unequivocal. As per its true import and meaning, the income from pension or other retiral benefits cannot be included while computing the income for the purpose of appointment on compassionate ground. Respondent No.1 being a senior bureaucrat and posted as Principal Secretary (Education) to the Government of Himachal Pradesh; whereas respondents No.2 and 3 occupying equally high position in the Government being Director and Under Secretary, Higher Education can reasonably be believed to have correctly understood the true import and meaning of the judgment. It was their bounden duty to have implemented the judgment in letter and spirit. They, however, have conducted themselves in a manner bringing thereby the authority and majesty of law and judgment into disrespect and disregard. 18. The judgment complained to be violated has attained finality, because the legality and validity thereof has not been challenged any further in the Apex Court or in any other and further proceedings. The action of the respondents to include the income of the family from pension has already been set aside and quashed by this Court with clear cut findings that the income from family pension and other retiral benefits cannot be included while computing the income of the family for the purpose of consideration of application for appointment on compassionate ground. The action of the respondents in computing the income of the family of the petitioner again by taking into consideration the amount received by his mother by way of family pension, amounts to gross and willful disobedience of the judgment. The true import and meaning of the judgment, in question, is that the application of the petitioner for appointment on compassionate ground has to be considered taking into consideration his family income from all sources excluding the income from family pension and retiral benefits, if any. The true import and meaning of the judgment, in question, is that the application of the petitioner for appointment on compassionate ground has to be considered taking into consideration his family income from all sources excluding the income from family pension and retiral benefits, if any. The computation of family income by including therein the income from family pension, again amply demonstrates that it has been done to bypass the judgment intentionally and deliberately. 19. Such willful act and conduct on the part of the respondents constitutes the basic ingredients for the offence of contempt. The orders passed in Contempt Petition (Civil) Nos.121/2014, 283/2014 and application CMP No.18778/2014 filed in Contempt Petition (Civil) No.283/2014, Annexures C-8, C-10 and C-12 (colly), respectively, whereby the respondents were directed to report compliance to the judgment complained to be violated persuade this Court to form such opinion. Despite repeated directions, the failure on the part of the respondents to comply with the judgment in its letter and spirit, leads to the only conclusion that they have scant regard to the judgment/orders passed by this Court. 20. Therefore, in our opinion, the respondents are in contempt, because they have violated the judgment of this Court intentionally and deliberately. We, therefore, order to issue notice to them in terms of Form No.1 to the Contempt of Court (Himachal Pradesh) Rules, 1996, to appear in person on 9.7.2015 and show cause as to why they be not punished for contempt of this Court.