Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 149 (ORI)

Swarnalata Dei v. Ranjana Chopra

2016-02-22

S.N.PRASAD, VINOD PRASAD

body2016
JUDGMENT By the Court - This application has been filed under Article 215 of the Constitution of India read with Section 12 of the Contempt of Courts Act, 1971 against opposite parties for violation of the order dated 22.07.2010 passed in W.P.(C) No.7476 of 2010 and further for flouting the orders dated 16.05.2011 and 12.05.2011 passed in Contempt case No.1847 of 2010 by this Court. 2. Brief facts lies in a narrow compass. The petitioner joined service on 02.01.1992 but her service was approved w.e.f. 06.03.1999. Being aggrieved, the petitioner approached this Court vide W.P.(C) No.3549 of 2004 which was disposed of on 09.07.2009 by directing opposite parties to take decision with regard to the approval of the past period of service i.e., since 02.01.1992 till 6.3.1999 and to take a decision within period of four months from the date of communication of the order. 3. When the order has not been complied with, a contempt case bearing CONTC No.200 of 2010 was filed and while the said contempt case was pending, the authorities have taken decision vide order dated 09.04.2010 for regularising the claim of the petitioner. The said fact was brought to the notice of this Court in the aforesaid Contempt case and thereafter the contempt application was disposed of with liberty to the petitioner to assail the order dated 09.04.2010 and accordingly the petitioner has preferred another writ petition being W.P.(C) No.7476 of 2010 which was disposed of vide order dated 20.07.2010. 4. This Court has quashed the order dated 9.4.2010 and held that the petitioner’s date of appointment has to be 02.01.1992 and all the consequential benefits shall be granted to the petitioner within a period of three months from the date of communication of this order. 5. Opposite party-State has filed Review Petition No.234 of 2010 but the same was dismissed vide order dated 09.02.2011. When the order passed by this Court in W.P.(C) No.7476 of 2010 was not complied with another Contempt Petition No.1847 of 2010 was filed and ultimately the authorities have complied with the order by paying to the petitioner a sum of Rs.3.91 lakh and also regularising the services of the petitioner w.e.f. 02.01.1992. When the order passed by this Court in W.P.(C) No.7476 of 2010 was not complied with another Contempt Petition No.1847 of 2010 was filed and ultimately the authorities have complied with the order by paying to the petitioner a sum of Rs.3.91 lakh and also regularising the services of the petitioner w.e.f. 02.01.1992. However, according to the petitioner all the consequential benefit has not been paid to her till today, hence this Contempt Petition has been filed on 15.02.2016 on the following grounds; (i) Although, opposite parties have approved the appointment of the petitioner from 2.1.1992 but that has not been carried out in the Gradation list published by the opposite parties in the cadre of Trained Graduate Teachers which was approved by the Director, Secondary Education on 08.11.2011 wherein the date of appointment of the petitioner was mentioned as 01.07.1999 instead of 02.01.1992 and her Serial Number was 215 in the gradation list. (ii) After approval of the appointment of the petitioner, her serial number ought to have been fixed at Serial No.6 just after one Nirmala Kumari Singh (Sl. No.5) and before Sarat Kumar Lanka (Sl.No.6). (iii) Authorities have also promoted juniors to the petitioner to the post of Headmaster/Headmistress of aided High Schools. (iv) Petitioner is also entitled to receive RACP on completion of 10/20/30 years of service as per Orissa Revised Scales of Pay Rules, 2008. (v) The petitioner has not been regularised by updating the service book of the petitioner treating the date of appointment of the petitioner as 02.01.1992 as a result of which the petitioner is not getting the periodical increments and other service benefits till today. 6. Before passing any order on merit, two questions which is important to be considered arises in this case i.e., (i) As to whether this contempt petition is maintainable on the ground of limitation, and (ii) Whether the scope of the order passed under its jurisdiction can be enhanced in a contempt jurisdiction of a High Court. So far as point (i) is concerned, this application has been filed under Article 215 of the Constitution of India read with Section 12 of the Contempt of Courts Act 1971. So far as point (i) is concerned, this application has been filed under Article 215 of the Constitution of India read with Section 12 of the Contempt of Courts Act 1971. Before answering the issue involved in this case, it would be relevant to quote the provision of Article 215 of the Constitution of India as well as Section 20 of the Contempt of Courts Act,1971, which is being reproduced:- “Art. 215 of the Constitution of India- High Courts to be Courts of record – Every High Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself. Section 20 of the Contempt of Courts Act – Limitation for actions for contempt – No Court shall initiate any proceeding of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.” Thus, it is evident on the one hand that the provision as contained in Article 215 of the Constitution of India does not explain regarding any period of limitation while on the other hand, period of limitation has been provided under Section 20 of the Contempt of Courts Act, 1971 whereby and hereunder, it has been provided that no Court shall initiate any proceeding of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed. 7. Question pertaining to invoking the jurisdiction as provided under Article 215 of the Constitution of India since without any period of limitation whereas Section 20 of the Contempt of Courts Act provides limitation of one year which shall be counted from the date on which the contempt is alleged to have been committed, hence what would be the position since on the one hand there is no limitation as provided under Article 215 of the Constitution of India which also conferred power upon the High Court to initiate contempt of Courts proceeding while on the other hand, Section 20 of the Contempt of Courts Act 1971 provides period of limitation. This legal aspect has fell for consideration before the Hon’ble Supreme Court in the case of Dr. L.P. Misra vrs. This legal aspect has fell for consideration before the Hon’ble Supreme Court in the case of Dr. L.P. Misra vrs. State of U.P. (1998) 7 SCC 379 wherein the contention was raised that while exercising powers under Article 215 of the Constitution of India for punishing the appellant for contempt of High Court the procedure contemplated by Section 14 of the Contempt of Court Act 1971 had not been followed. Hon’ble Supreme Court, dealing with said contention has observed in para-9,as follows:- “9. After hearing learned counsel for the parties and after going through the materials placed on record, we are of the opinion that the Court while passing the impugned order had not followed the procedure prescribed by law. It is true that the High Court can invoke powers and jurisdiction vested in it under Article 215 of the Constitution of India but such a jurisdiction has to be exercised in accordance with the procedure prescribed by law. It is in these circumstances, the impugned order cannot be sustained.” 8. Hon’ble Supreme Court in another case wherein same issue fell for consideration viz: Pallav Seth vrs. Custodian and others (2001) 7 SCC 549 wherein their lordships has been held in para-31 as under:- “31. This Court has always frowned upon the grant or existence of absolute or unbridled power. Just as power or jurisdiction under Article 226 has to be exercised in accordance with law, if any, enacted by the legislature, it would stand to reason that the power under Article 129 and/or Article 215 should be exercised in consonance with the provisions of a validly enacted law. In case of apparent or likelihood of conflict the provisions should be construed harmoniously.” There can be no doubt that both Hon’ble Supreme Court as well as High Courts are Courts of record and the Constitution of India has given them the power to punish for contempt which cannot be abrogated and stultified but for the exercise of power under Article 129 and/or Article 215 can there be any legislation prescribing the manner and the extent to which such a that the power can be exercised? 9. The Hon’ble apex Court has observed that this Court has always frowned upon grant or existence of absolute or unbridled power under Article 226 which has to be exercised in accordance with law, if any, enacted by the legislature. 9. The Hon’ble apex Court has observed that this Court has always frowned upon grant or existence of absolute or unbridled power under Article 226 which has to be exercised in accordance with law, if any, enacted by the legislature. It would thus stand to reason that the power under Article 129 and/or Article 215 should be exercised in consonance with the provisions of a validly enacted law. In case of apparent or likelihood conflict the provisions should be construed harmoniously. 10. As would be evident from the three Judges Bench judgment rendered by Hon’ble Supreme Court in the case of Dr. L. P. Misra (supra) wherein it has been observed that the procedure provided under the Contempt of Courts Act had to be followed even in exercise of the jurisdiction under Article 215 of the Constitution of India the controversy stands resolved. 11. Thus, after taking into consideration the ratio laid down in the case Pallav Seth (supra) it has therefore to be held that limitation provided under Section 20 applied in contempt proceedings arising out of Article 215 of the Constitution of India as well. 12. The admitted position in this case is that this contempt petition has been filed on 15.02.2016 for non-compliance of the order dated 20.07.2010 passed in W.P.(C) No.7476 of 2010 under Article 215 of the Constitution of India read with Section 12 of the Contempt of Courts Act 1971 as has already been stated hereinabove that the procedures provided by the Contempt of Courts Act had to be followed even in exercise of the jurisdiction under Article 215 of the Constitution of India as per the ratio laid by the Hon’ble Supreme Court in the case of Pallav Seth (supra). Hence in the light of the fact that this contempt petition has been filed on 15.02.2016 for non-compliance of the order passed by this Court dated 20.07.2010 hence the contempt petition is held to be not in consonance with the provisions as contained in Section 20 of the Contempt of Courts Act 1971 which prescribes the period of limitation of one year by making a specific provision that no Court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed. 13. 13. Admittedly, order alleged to have not been complied is dated 20.07.2010 wherein this Court has directed the authorities, while quashing the order impugned, to release all consequential benefits within a period of three months from the date of communication of that order. There is no dispute about the fact that the order passed in W.P.(C) No.7476 of 2010 has already been communicated and the same has also been complied with as would be evident from the statement made by the petitioner in the contempt petition that sum of Rs.3.91 lakhs has been paid and the service of the petitioner has been regularised. Moreover, this contempt petition has been filed which is beyond the period of one year, hence barred by period of limitation as is provided under Section 20 of the Contempt of Courts Act. Although no specific date has been given in the contempt petition regarding the contempt alleged to have been committed but from the facts, it can be gathered that since monetary benefit has already been paid and the service of the petitioner has been regularised and thereafter this contempt petition has been filed after lapse of more than five years which itself suggests that it is barred by limitation. In view of discussion made hereinabove, this contempt petition is devoid of merit and as such is dismissed on the ground of limitation. 14. So far as point (ii) is concerned, it is the case of the petitioner that after the order passed in W.P.(C) No.7476 of 2010, monetary benefit to the tune of Rs.3.91 lakhs has already been paid and thereafter her service has also been regularised but now she is aggrieved altogether for a different cause of action i.e., from publication of the gradation list, regarding her seniority, regarding her promotion and having juniors being granted the promotion ignoring her claim and regarding non-regularisation of her service. 15. It is settled that under the contempt of Courts jurisdiction, the Court is only to see regarding wilful non-compliance of the order passed by this Court. From the facts pleaded by the petitioner, it is evident that opposite party-State have substantially complied with the direction given by this Court as such there is no reason to entertain this contempt petition. Hence, the contempt petition is dismissed being devoid of merits. From the facts pleaded by the petitioner, it is evident that opposite party-State have substantially complied with the direction given by this Court as such there is no reason to entertain this contempt petition. Hence, the contempt petition is dismissed being devoid of merits. However, the petitioner is at liberty to move before the appropriate forum for redressal of her remaining grievances. Petition dismissed.