Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 395 (ORI)

Sudhamayee Dash v. Commissioner-cum-Secretary

2017-04-12

S.N.PRASAD, SANJU PANDA

body2017
JUDGMENT : S.N. Prasad, J. 1. This writ petition is under Articles 226 and 227 of the Constitution of India whereby and where under the order passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack dated 5.1.2017 passed in C.P.No.378(C) of 2015 arising out of O.A.No.2072(C) of 2014 has been assailed on the ground that the Tribunal while dropping the contempt proceeding has not appreciated the entire aspect of the matter into consideration even though the order passed by it in O.A.No.2072(C) of 2014 has not been complied with in its letter and spirit. 2. Brief facts of the case of the petitioner is that the petitioner joined as Anganwadi Worker in Athagarh I.C.D.S. Project on 20.2.1982 and working as such from 29.6.1990 in Cuttack City I.C.D.S. Project, Cuttack. While she was working as Anganwadi Worker in the district of Cuttack vide order dated5.2.2008 ignoring the her case for promotion by treating her date of appointment as 26.2.1982 instead of 20.2.1982 and as such juniors have been granted promotion. The petitioner being aggrieved with the decision of the Collector, Cuttack has filed writ petition being W.P.(C) No.6328 of 2009, W.P.(C) No.14851 of 2010 and finally W.A.No.246 of 2012, the writ appeal Court vide its order dated 11.2.2014 has directed the opposite parties to give promotion to the petitioner to the post of Lady Supervisor from the date when juniors have been given such promotion. According to the petitioner, when the order passed by the writ appeal court has not been complied with in its letter and spirit, petitioner has filed contempt petition before the Tribunal being C.P.No.378(C) of 2015 for initiation of contempt proceeding under the Contempt of Courts Act, 1971 against the opposite parties for their willful non-compliance of the order passed by the Tribunal in O.A.No.2072(C) of 2014. Learned Tribunal after perusal of the show cause filed by the opposite parties and considering the fact that the petitioner has been given promotion as Lady Supervisor on 5.2.2008 and placed her in the appropriate place in the seniority list, the contempt proceeding has been dropped vide order dated 5.1.2017, same is under challenge by way of this writ petition on the ground that the petitioner has not been paid arrears of salary from 5.2.2008 to 22.4.2014, hence the order has not been complied with in its letter and spirit, Tribunal has not taken into consideration this aspect of the matter, hence the order is not sustainable in the eye of law. 3. On the other hand, learned counsel representing the opposite parties-State has vehemently opposed the prayer of the petitioner forcefully making his argument that the order passed by the Tribunal in O.A.No.2072(C) of 2014 has fully been complied with since the Tribunal has disposed of the original application by directing the authorities to extend benefit in favour of the petitioner as per the direction passed by this Court in W.A.No.246 of 2013, in the writ appeal this Court has directed to grant the petitioner promotion from the date when her juniors have been granted promotion taking into consideration the fact that she was to retire in the month of April,2014 and as such she may get benefit of the promotional post after her retirement and further his position in the seniority list has also been directed to be corrected which has already been complied with by the authority by placing her in the appropriate place. Since there is no direction passed by this Court in W.A.No.246 of 2013 for making payment of arrears of differential salary from 5.2.2008 to 22.4.2014, the period under which the petitioner has discharged her duty as Anganwadi Worker because of the reason that Anganwadi Worker being not a regular post rather it is contractual engagement on the basis of payment of honourarium as fixed by the Government from time to time, hence she cannot claim regular scale without discharging her duty as Lady Supervisor. He further submits that the proceeding under the Contempt of Courts Act, there must be specific direction by the court of law but there is no such direction either by the Tribunal or by this Court for making payment of arrears of differential salary for the non-functioning period and as such the Tribunal has rightly dropped the contempt proceeding. 4. We have heard learned counsel for the parties and perused the documents available on record. 5. The undisputed fact in this case is that the petitioner was engaged as Angnawadi Worker w.e.f. 26.2.1982 which, according to the petitioner, has wrongly been referred as her date of engagement since she actually has engaged on 20.2.1982 but on wrong notion she has been denied promotion as Lady Supervisor treating her date of joining as Anganwadi Worker wrongly, while juniors have been given promotion as Lady Supervisor who have been engaged after her engagement. The petitioner being aggrieved, has approached the court of law which ultimately culminated in the writ appeal being W.A.No.246 of 2013 and this Court has passed the following direction: “… Accordingly, we direct that the final gradation list under Annexure-6 by appropriately indicated. Consequently, we also quash the order under Annexsure-5 and Annexure-4 to the extent Annexure-4 directs that the seniority of the applicant would be fixed from 29.6.1990 and not from 20.2.1982. We further commend that the correction of the gradation list should be carried out by the official. Respondents more particularly respondent no.4 and 5, i.e. within 15 days and thereafter within four weeks, official respondents are directed to consider the case of the applicant for promotion to the post of Lady Supervisor in accordance with law from the date when her juniors were given promotion. Respondents more particularly respondent no.4 and 5, i.e. within 15 days and thereafter within four weeks, official respondents are directed to consider the case of the applicant for promotion to the post of Lady Supervisor in accordance with law from the date when her juniors were given promotion. The direction to consider her case for promotion should not be treated as a precedent as the same is being issued in peculiar facts and circumstances of this case, keeping in mind the submission of the learned counsel for the applicant that she would retire during April,2014 in case ears a promotion to the post of Lady Supervisor.” The petitioner has again approached the Tribunal being O.A.No.2072(C) of 2014 for redresssal of her grievance regarding benefit of promotion which is being denied even in spite of the order passed by this Court, the Tribunal taking note of the order passed by this Court in W.A.No.246 of 2013, has disposed of the original application by directing the authorities to extend benefit in the light of the direction passed by this Court in W.A.No.246 of 2013. The petitioner thereafter has been given notional promotion to the post of Lady Supervisor w.e.f. 5.2.2008 in the scale of pay of Rs.9300-34,800/- + G.P.Rs.4200/- with usual dearness allowance as admissible from time to time vide order No.2040 dated 22.4.2014 and posted to ICDS Project, Cuttack Sadar in Cuttack district since 5.2.2008, her promotion shall be treated as notional and she will be eligible to all the financial benefit from her date of joining in the promotional post. The Tribunal after taking into consideration the substantial compliance of the order passed by it, has dropped the contempt proceeding initiated in terms of C.P.No.378(C) of 2015, the petitioner being aggrieved with the said order is before this Court by way of this writ petition on the ground that the Tribunal has not appreciated the fact while dropping the contempt petition, hence this Court may exercise writ jurisdiction conferred under Articles 226 and 227 of the Constitution of India by issuing appropriate direction so that the order may be complied with. 6. The Tribunal has proceeded for initiation of contempt proceeding in the light of the powers conferred as contained in Section 17 of the Administrative Tribunals Act, 1985 in accordance with the provisions of the Contempt of Courts Act,1971. 6. The Tribunal has proceeded for initiation of contempt proceeding in the light of the powers conferred as contained in Section 17 of the Administrative Tribunals Act, 1985 in accordance with the provisions of the Contempt of Courts Act,1971. The Contempt of Courts Act, 1971 contained definition under section 2(b) of ‘civil contempt’ which means willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court. Definition of ‘civil contempt’ clearly stipulates that there must be willful disobedience meaning thereby the authorities if not complied with the order willfully or deliberately, then only contempt will proceed under the Contempt of Courts Act,1971 for inflicting punishment upon the so-called contemnor. It is also evident from the said definition that willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court, Court has got significance which suggests that if Court will think that direction passed by it has not been complied with, then only proceeding under the Contempt of Courts Act will be initiated by the said Court. In the case in hand, while contention of the petitioner that the order passed by the Tribunal has not been complied with in its letter and spirit so far as it relates to disbursement of arrears of differential salary from 5.2.2008 to 22.4.2014, hence the order passed by the Tribunal has not been complied with. 7. We have examined the contention of the petition to analyze the legality and propriety of the order passed by the Tribunal. We have also examined the order passed by this Court in W.A.No.246 of 2013 in which specific direction has been passed, (i) to fix seniority of the applicant w.e.f. 20.2.1982, (ii) Authorities have been directed to give promotion to the applicant to the post of Lady Supervisor in accordance with law from the date her juniors were given promotion to the post of Lady Supervisor making specific observation that the direction to consider her promotion should not be treated as a precedent as the same is being issued in peculiar facts and circumstances of the case, keeping in mind the submission of the learned counsel for the applicant that she would retire during April, 2014, in case she earns a promotion to the post of Lady Supervisor. From this specific observation of this Court in W.A.No.246 of 2013, we are of the considered view that there is no direction of the Court to disburse differential arrears of salary on the basis of the retrospective promotion and the said order has attained its finality. The Tribunal has passed order while disposing of the O.A.No.2072(C) of 2014 directing the authorities to extend all benefits in the light of the order passed by this Court in W.A.No.246 of 2013, in pursuance thereof, the authorities have taken decision on 22.4.2014 granting promotion to the petitioner to the post of Lady Supervisor on notional basis, but that part of the order by which direction has been given on notional basis has not been challenged by the petitioner. Notional means that there cannot be any actual monetary benefit, hence the petitioner cannot be said to be entitled to get actual benefit on the basis of the notional promotion granted w.e.f. 5.2.2008 till 22.4.2014. The Tribunal, after taking into consideration this aspect of the matter which has been brought by the State authorities by way of show case, has reached to the conclusion that the order passed by it in O.A.No.2072(C) of 2014 has duly been complied with, hence dropped the contempt proceeding. 8. We, on the basis of the arguments advanced by the State authorities and on the basis of the factual aspect as well as the order passed in W.A.No.246 of 2013, are of the opinion that there cannot be said to be any willful and deliberate disobedience of the order passed by the Tribunal and as such it cannot be said that while dropping the contempt proceeding the Tribunal has committed error. In view thereof, we have no reason to interfere with the matter. Accordingly, the writ petition fails and it is dismissed.