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2017 DIGILAW 140 (HP)

Shashi Pathania v. P. C. Dhiman

2017-03-08

MANSOOR AHMAD MIR, SANDEEP SHARMA

body2017
Sandeep Sharma, J. By way of instant Contempt Petition preferred under Section 12 of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution of India, petitioners herein have prayed for initiation of contempt proceedings against the respondents for willful and intentional non-compliance of judgment dated 23.03.2015 passed by this Court in CWP No.1823 of 2010, titled: Shashi Pathania and another vs. State of H.P. and Others, as also order passed in COPC No.715 of 2015, titled: Shashi Pathania & Another vs. P.C. Dhiman & Ors., decided on 14.9.2015, whereby respondents/Competent Authority were directed to examine the case of the petitioners in light of the judgment dated 4.1.2010 passed by Writ Court in CWP No.188 of 2004. 2. At the very outset it may also be noticed that the petitioners herein had earlier filed a COPC bearing No.715 of 2015, which was disposed of on 14.9.2015 directing therein the respondents to comply with the directions dated 10.12.2014 passed in CWP(T) No.8898 of 2008 within a period of six weeks, if not already complied with. 3. Facts necessary, as emerged from the record for proper adjudication of the instant petition, are that the petitioners, being aggrieved with decision of the respondents in dissolving the Himachal Pradesh Sanskrit Academy (for short `Academy’) vide a Notification dated 28.2.2004, as a result of which their services came to be dispensed with, approached the Writ Court by way of CWP No.1823 of 2010, which came to be decided on 23.3.2015. It also emerged from the record as well as judgment dated 23.3.2015 that one employee of Academy had filed CWP No.188 of 2004 laying therein challenge to Notification dated 28.2.2004, whereby earlier Notifications, dated 22.3.2002 and 1.8.2003, constituting the Academy were rescinded, as well as order dated 15.3.2004, whereby his services as Secretary of the Academy were terminated. 4. Perusal of judgment dated 23.3.2015 clearly suggests that Writ Court, on the submissions having been made by learned counsel representing the petitioners, disposed of the Writ Petition having been preferred by the petitioners herein with a direction to respondents/Competent Authority to examine the case of petitioners in light of the judgment passed in CWP No.188 of 2004, which came to be decided on 4.1.2010. Perusal of judgment nowhere suggests that there was any findings on merits of the case which were ever recorded by the Writ Court while disposing of the petition; rather simple direction was issued to the respondents to examine the case of the petitioners in light of the judgment passed by this Court in CWP No.188 of 2004. 5. Shri Dushyant Dadwal, learned counsel representing the petitioners, vehemently argued that till date no steps, whatsoever, have been taken by the respondents for implementing the judgment dated 23.3.2015, rather respondents have made all out efforts to defeat the mandate of directions contained in the judgment and as such respondents deserve to be dealt with severely under Contempt of Courts Act. Mr.Dadwal further contended that since respondents were directed to consider the case of the petitioners in light of the judgment dated 4.1.2010 passed in CWP No.188/2004, respondents ought to have extended similar relief to them as was extended to the petitioner in CWP No.188/2004, but at the first instance respondents failed to provide the appointment order to the petitioners and lateron, after a considerable delay, issued appointment orders by altogether changing the terms and conditions of appointment, which action on their part is willful and intentional disobedience of the directions passed by this Court and as such respondents need to be punished in accordance with law. 6. Shri Shrawan Dogra, learned Advocate General, with a view to refute the aforesaid arguments having been made by Shri Dadwal, invited the attention of this Court to the consideration order passed by respondents in terms of judgment dated 23.3.2015 to demonstrate that case of the petitioners was duly considered in light of the judgment dated 4.1.2010 passed in CWP No.188 of 2004. 7. Mr.Dogra further contended that since there was a direction to consider the case of the petitioners in light of the judgment, as referred above, case of the petitioners was duly considered and they were offered fresh contractual appointment on the recommendations of Council of Academy vide order dated 24.5.2011 by specifically referring to decision as contained it. Mr.Dogra further contended that vide letter dated 4.8.2011 petitioners were requested to join their duties within ten days on the receipt of aforesaid letter, but, petitioner No.1 failed to join his duties, whereas petitioner No.2 joined his duties on 10.8.2011. Mr.Dogra further contended that vide letter dated 4.8.2011 petitioners were requested to join their duties within ten days on the receipt of aforesaid letter, but, petitioner No.1 failed to join his duties, whereas petitioner No.2 joined his duties on 10.8.2011. Mr.Dogra further stated that on the request of petitioner No.1 vide application dated 16.8.2011, Academy had issued an office order dated 17.8.2011 directing him to report for duties within 20 days from the date of issue of the aforesaid office order, but despite that he failed to join duties and as such there is no willful disobedience of the directions passed by this Court as is being projected by the counsel representing the petitioner. 8. We have heard learned counsel for the parties and gone through the record of the case. 9. Careful perusal of order dated 3.6.2015 (Annexure C-10) clearly suggests that cases of the petitioners were duly considered by the Authorities concerned in terms of judgment dated 4.1.2010, whereby Notification issued by the Authorities rescinding the Academy was declared null and void. It clearly emerged from the order that pursuant to passing of order dated 4.1.2010, Authorities concerned reconstituted the Academy and applications were also called afresh for contractual appointments on the recommendation of Executive Council of Academy vide communication dated 24.5.2011. 10. This Court, after carefully examining the aforesaid consideration order, sees no force in the contention having been made by the counsel representing the petitioners that the petitioners were required to be offered appointment on old terms and conditions. Pleadings available on record clearly suggest that at the time of rescinding of Academy, petitioners were working purely on contract basis and they were appointed for fixed tenure. Petitioner No.1 was engaged as Clerk purely on contract basis on fixed amount of Rs.4894/- per month by the Secretary of the Academy on 15.03.2003, whereupon he joined on 16.03.2003. Agreement so executed by petitioner No.1 and office of Secretary of Academy provides engagement for six months as approved by Executive Council and thereafter agreement was renewed after every six months upto 15.03.2005. Contract, if any, of the petitioner with the respondents was till 15.3.2005, whereas, Authorities vide Notification dated 28.2.2004 decided to rescind earlier Notification dated 22.3.2002 and 1.8.2003, whereby Academy was constituted, meaning thereby contract, if any, between the petitioners and respondents-Society came to an end on 28.2.2004. Contract, if any, of the petitioner with the respondents was till 15.3.2005, whereas, Authorities vide Notification dated 28.2.2004 decided to rescind earlier Notification dated 22.3.2002 and 1.8.2003, whereby Academy was constituted, meaning thereby contract, if any, between the petitioners and respondents-Society came to an end on 28.2.2004. Subsequently, after passing of judgment dated 4.1.2010, respondents re-constituted the Academy and accordingly petitioners were offered fresh contractual appointment on the recommendations of Executive Council of the Academy. Judgment dated 4.1.2010 passed in CWP No.188 of 2004 clearly suggests that one Shri Hari Dutt Sharma, who happened to be Secretary of the Academy at that relevant time, apart from laying challenge to decision of Authorities to rescind the Academy, had also laid challenge to his termination as Secretary of the Academy. This Court, while passing judgment dated 4.1.2010, quashed the Notification dissolving the Academy as well as termination of the services of the petitioner as Secretary of the Academy. However, taking into consideration the fact that the petitioner Hari Dutt Sharma was appointed as Secretary of the Academy for a period of five years or till he attained the age of 65 years, whichever was earlier, directed the Authorities to pay salary for the post of Secretary in accordance with the terms of his appointment up to 3.1.2007 within three months from 4.1.2010. 11. Applying aforesaid analogy, as was done in the case of Hari Dutt Sharma, petitioner in that case, respondents paid salary to the petitioners for the period up to 15.3.2005 i.e. till expiry of their contract with the respondents. Consideration order clearly suggests that amount payable till 15.3.2005 stands duly paid to the petitioner on 21.9.2012 under proper receipt. Hence, this Court sees no discrimination, if any, as alleged by the counsel representing the petitioners. Similarly, this Court sees that after reconstitution of Academy in terms of judgment dated 4.1.2010 in CWP No.188 of 2004, petitioners were also offered fresh contractual appointment like Shri Hari Dutt Sharma (petitioner in the said Civil Writ Petition) on the recommendation of Executive Council vide order dated 24.5.2011. But despite there being extension of time, as prayed for by petitioner No.1, petitioner failed to join duty and as such there is no violation, if any, by the respondents while complying the judgment dated 23.3.2015 passed in CWP No.1823 of 2010. But despite there being extension of time, as prayed for by petitioner No.1, petitioner failed to join duty and as such there is no violation, if any, by the respondents while complying the judgment dated 23.3.2015 passed in CWP No.1823 of 2010. This Court, after carefully examining the consideration order passed by the Authorities in terms of order dated 23.3.2015, is convinced and satisfied that all the reliefs, as have been extended to the petitioner by this Court while passing the order dated 23.3.2015, have been extended strictly in terms of judgment dated 4.1.2010 passed in CWP No.188 of 2004 and as such there is no force much less substantial in the instant contempt petition and same appears to be sheer abuse of process of law. 12. This Court can not grant any relief over and above which was prayed in the original writ petition. 13. Their lordships of the Hon’ble Supreme Court in Bihar Finance Service House Construction Coop. Society Ltd. V. Gautam Goswami reported in (2008) 5 SCC 339 have held as under: “33. This Court while exercising its jurisdiction under the Contempt of Courts Act or Article 129 of the Constitution of India must strive to give effect to the directions issued by this Court. When the claim of the parties had been adjudicated upon and has attained finality, it is not open for any party to go behind the said orders and seek to take away and/ or truncate the effect thereof. [See T.R. Dhananjaya v. J. Vasudevan (1995) 5 SCC 619 ] 34. In Prithawi Nath Ram v. State of Jharkhand and Others (2004) 7 SCC 261 ], this Court held: "5. While dealing with an application for contempt, the court is really concerned with the question whether the earlier decision which has received its finality had been complied with or not. It would not be permissible for a court to examine the correctness of the earlier decision which had not been assailed and to take a view different than what was taken in the earlier decision. It was furthermore observed: "6. On the question of impossibility to carry out the direction, the views expressed in T.R. Dhananjaya v. J. Vasudevan need to be noted. It was furthermore observed: "6. On the question of impossibility to carry out the direction, the views expressed in T.R. Dhananjaya v. J. Vasudevan need to be noted. It was held that when the claim inter se had been adjudicated and had attained finality, it is not open to the respondent to go behind the orders and truncate the effect thereof by hovering over the rules to get around the result, to legitimise legal alibi to circumvent the order passed by a court." 35. Moreover undertakings had been given by the respondents before this Court from time to time. What they have done or intend to do is only the compliance thereof. The petitioner had to wait for a long time to get the fruits of requisition made by it for acquisition of land. The lands were acquired in 1983 on the basis of the requisition made by it in 1973.” 14. Their lordships of the Hon’ble Supreme Court in Sudhir Vasudeva v. M. George Ravishekaran reported in (2014) 3 SCC 373 have held as under: “15. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or willful violation of the same. Decided issues cannot be reopened; nor the plea of equities can be considered. Only such directions which are explicit in a judgment or order or are plainly self evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or willful violation of the same. Decided issues cannot be reopened; nor the plea of equities can be considered. Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles would appear to be the cumulative outcome of the precedents cited at the bar, namely, Jhareswar Prasad Paul and Another vs. Tarak Nath Ganguly and Others, V.M.Manohar Prasad vs. N. Ratnam Raju and Another, Bihar Finance Service House Construction Cooperative Society Ltd. vs. Gautam Goswami and Others and Union of India and Others vs. Subedar Devassy PV.” 15. Consequently, in view of the discussion made as well as law referred hereinabove, we see no merit in the present Contempt Petition and same is dismissed without any order as to costs.