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2018 DIGILAW 2506 (ALL)

Rajesh Singh v. Yogesh Kumar Shukla, Rajya Sampatt Adhikari, Rajya Sampatti Vibhag

2018-12-10

ABDUL MOIN

body2018
ORDER : Abdul Moin, J. 1. Heard. 2. The present contempt petition has been preferred alleging non compliance of the order passed by the writ Court dated 21.02.2018. For the sake of convenience, the order dated 21.02.2018 is reproduced as under:- “1. Heard learned counsel for the petitioners and learned Standing counsel. 2. Petitioners have filed the present writ petition claiming that they were appointed as Daily Wager at the relevant time and were being paid minimum of the pay scale as per the report of Fifth Pay Commission which was duly accepted by the State Government. Thereafter, on acceptance of the report of the Sixth Pay Commission, they were entitled for the revised minimum pay scale which was denied by the interim order. The sole reason of denial is that they are already being paid much more then what would be payable to the Daily Wager. 3. This Court as well as Supreme Court in large number of decisions have already held that Daily Wager, in case they are performing the same duties as regular employees, are entitled to the minimum of the pay scale alongwith the Dearness Allowance. 4. One for judgment is in the case of State of U.P and others Vs. Puttilal, 2006 SCC (Labour and Service) 1819. 5. In view of aforesaid, petitioners are entitled to minimum of the pay scale which was being paid to the regular employee of the department. 6. Hence, impugned order dated 07.10.2013 cannot stand and is set aside. The respondents are directed to pay the minimum of the pay scale which was duly amended from time to time, which was being paid to the similarly situated regular employees of the department. 7. Such payment shall be made to the petitioner within a period of four months from the date of certified copy of this order is placed before him. 8. With the aforesaid direction, writ petition is disposed of." 3. It is specific contention of the petitioner in paragraph 7 of the contempt petition that the certified copy of the order of the writ Court was served upon the respondent by hand on 28.03.2018 and by registered post on 02.04.2018. However, the respondent did not comply with the order passed by the writ Court and hence the present contempt petition. 4. Upon filing of the contempt petition, this Court issued notice on 10.08.2018. However, the respondent did not comply with the order passed by the writ Court and hence the present contempt petition. 4. Upon filing of the contempt petition, this Court issued notice on 10.08.2018. Subsequent thereto, an undated application under the signature of the learned Additional Chief Standing counsel was filed along with an affidavit of the respondent-contemnor praying for grant of time. The affidavit itself is dated 17.09.2018. 5. This Court vide order dated 17.09.2018 upon an assurance having been given by the respondent that the compliance of the judgment passed by the writ Court for making payment of dues admissible to the petitioners would be make within two weeks, observed, that in case the assurance extended by the respondent is not implemented then he shall appear in person on the date fixed. 6. Thereafter when this matter came up before this Court on 11.10.2018, this Court noticing certain facts has passed the following order:- “Affidavit of compliance filed by Sri Pankaj Khare, learned Additional Chief Standing Counsel, is taken on record. Heard. It has been contended by learned Additional Chief Standing Counsel that in pursuance to the order passed by the writ Court dated 21.02.2018, the respondent contemnor had initially preferred a Special Appeal No.490 of 2018 in re: State of U.P. vs. Rajesh Singh and two others, which has been dismissed on 14.09.2018. It is only thereafter the respondent has proceeded to pass the compliance order dated 05.10.2018 for making certain payments to the petitioners. Sri Khare has also passed on a copy of e-payment receipt purportedly paying an amount of Rs.9,90,180/, which has been paid to the petitioners. A perusal of the case file indicates that the order of the writ Court dated 21.2.2018 by which, taking into consideration the law laid down by Hon'ble the Supreme Court in the case of State of U.P. and others vs. Puttilal reported in 2006 SCC (Labour and Services 1819, the minimum of pay scale was granted by this Court to the petitioners. It was not that this Court had proceeded to pass an order which was alien to service jurisprudence. However, the said order came to be challenged in the special appeal yet from a perusal of the order dated 05.10.2018 filed along with compliance affidavit it does not come out that any stay order was granted. The special appeal has also been dismissed on 14.09.2018. However, the said order came to be challenged in the special appeal yet from a perusal of the order dated 05.10.2018 filed along with compliance affidavit it does not come out that any stay order was granted. The special appeal has also been dismissed on 14.09.2018. No compliance had been made of the order passed by the writ Court and it was only when on 10.08.2018 that this Court issued notice of contempt and subsequently the special appeal was also dismissed that the respondent contemnor has now come with the compliance. Thus, it is apparent that the compliance has only been made after the contempt was filed and the notice of contempt was issued. This Court is quite convinced that but for the contempt notice being issued nothing would have been done by the respondent contemnor. As is evident from the fact that the respondent contemnor did not even respond to the representation that was sent by the petitioners for making compliance of the order which was sent through representation dated 21.02.2018. It is also not that the respondent contemnor applied to the writ Court for extension of time. It is only pain and fear of being punished for contempt that seems to have persuaded the respondent contemnor to take action and comply with the direction of this Court. It is apparent that the time granted by the writ Court for compliance of its order i.e. four months starting from 21.02.2018 was flagrantly and willfully violated by the respondent-contemnor so much so that despite settled proposition of law laid down by Hon'ble the Supreme Court in the case of Puttilal (supra), a special appeal was also filed which was dismissed in limine. Thus, it appears that there is willful and deliberate defiance of the judgment and order dated 21.02.2018 passed by the writ Court. Accordingly, keeping in view the law laid down by Hon'ble the Supreme Court in the case of Vidya Dhar Sharma vs. G.B. Patnaik and others reported in (2001) 10 SCC 633 , list this case on 29.10.2018 on which date the respondent-contemnor shall appear in person to indicate as to why exemplary cost should not be imposed upon him for delayed compliance of the order passed by the writ Court." 7. Thereafter when the case was listed on 29.10.2018, a prayer was made by learned Additional Advocate General appearing for the respondent for two weeks further time to file an affidavit indicating compliance of the order dated 11.10.2018 passed by this Court and consequent thereto, an affidavit along with an application dated 11.10.2018 has been filed. Incidentally, the said affidavit does not bear any date at running page 4 which itself indicates the casual and cavalier manner in which the applications and affidavits are being filed both by the learned Standing counsel as well as by the contemnor (s) before this Court. 8. Be that as it may, in the affidavit so filed it has been indicated that the order passed by the writ Court dated 21.02.2018 was complied with by passing an order dated 05.10.2018, a copy of which has been filed as annexure 1 to the affidavit. Thereafter, an unconditional apology has been extended and it has been prayed that the contempt petition may be dismissed and the notice discharged. 9. The reasons why the Court was constrained to pass the order dated 11.10.2018 have been recorded threadbare in the said order. At the risk of the repetition, it may be indicated that the order passed by the writ Court dated 21.02.2018 was for payment of minimum of pay scale to the petitioners i.e the minimum of pay scale which was being paid to the regular employees of the department. It was not that the writ Court was proceeding to pass an order for the very first time rather the law which has been crystallized in this regard by the Hon'ble Supreme Court in the case of Puttilal (supra) over which reliance was placed by the writ Court was reiterated and the payment was directed to be made to the petitioners. Being aggrieved with the said order, a special appeal was filed by the respondent-contemnor challenging the order passed by the writ Court vide a special appeal bearing Special Appeal (defective) No. 490 of 2018 which was dismissed on 14.09.2018. In fact while dismissing the special appeal the Division Bench has observed that "after going through the order passed by the Hon'ble Single Judge, we find there is no illegality in the question of fact as well as law the appeal is misconceived and is accordingly dismissed". In fact while dismissing the special appeal the Division Bench has observed that "after going through the order passed by the Hon'ble Single Judge, we find there is no illegality in the question of fact as well as law the appeal is misconceived and is accordingly dismissed". Thus, the Division Bench was of the view that the special appeal was an exercise in futility inasmuch as, the Hon'ble Single Judge had not directed for anything new rather had only reiterated what the Hon'ble Supreme Court in the case of Puttilal (supra) has laid down (and what subsequently has been followed by the Hon'ble Supreme Court in the case of State of Punjab and Ors. vs. Jagjit Singh and Ors., (2017) 1 SCC 148 ). However, the respondent-contemnor proceeded to not comply with the order passed by the writ Court within the stipulated the time specified rather for reasons best known to him chose to file a belated and delayed special appeal whose fate has already been indicated above. Thus, it is apparent that the respondent-contemnor had no regard to the order passed by the writ Court based on the settled proposition of law in the case of Puttilal (supra) [and subsequent judgment of Jagjit Singh (supra)] but being in a position to challenge the said judgment of the writ Court, in fact challenged it and after the special appeal was dismissed, has proceeded to comply with it. It may be indicated that the compliance has only been made after the contempt Court has taken cognizance and issued notice to the respondent-contemnor on 10.08.2018. 10. Thus, the petitioners, who were working as casual labour, were initially constrained to approach the Court for their rightful and legitimate claim of getting the minimum pay scale which should have been extended to them by the respondent-contemnor himself as the right of such a causal labour to get minimum pay scale stands crystallized by the Hon’ble Supreme Court’s judgment in the case of Putti Lal (supra). Once the Single Judge passed such an order, then instead of complying with the judgment a special appeal was filed belatedly in which no interim order was passed. However, instead of complying with the order of the writ Court, the respondent-contemnor compelled the petitioner to file the instant contempt petition. Once the Single Judge passed such an order, then instead of complying with the judgment a special appeal was filed belatedly in which no interim order was passed. However, instead of complying with the order of the writ Court, the respondent-contemnor compelled the petitioner to file the instant contempt petition. Thus, the petitioners were forced into an avoidable litigation by the respondent-contemnor not once but thrice simply because the contemnor was in a position to litigate having the funds of the State at his command. 11. Keeping in view the aforesaid discussion, it can safely be said that, but for the contempt notice being issued to the respondent-contemnor he would not have proceeded to comply with the judgment passed by the writ Court and it was only under the threat of contempt or the punishment after the contempt notice has been issued that he proceeded to comply with it. 12. It would also be relevant to mention that it is admitted by Sri Pankaj Khare, learned Additional Chief Standing counsel that neither any stay order was granted in special appeal nor was there any impediment in the compliance of the order passed by the writ Court yet because of the legal opinion that had been given for filing of special appeal that the respondent-contemnor chose to not comply with the order and it was only when the special appeal was dismissed and a contempt notice had been in fact issued that the respondent-contemnor proceeded to comply with the order. 13. The reason why this Court has painstakingly gone through the details of this case is to indicate the contemptuous and cavalier attitude of the respondent-contemnor towards the order passed by the writ Court and being in a position to challenge the order passed by the writ Court which, as already indicated above has been observed by the Division Bench of this Court to not have any infirmity both in fact and in law which resulted in dismissal of the special appeal, has now proceeded to comply with the judgment. 14. This attitude of the respondent-contemnor of not complying with the time bound order passed by the writ Court without there being any impediment for the same or any stay order having been granted in special appeal would thus attract the Code of compulsory cost as enunciated by the Hon'ble Supreme Court in the case of Subrata Roy Sahara Vs. 14. This attitude of the respondent-contemnor of not complying with the time bound order passed by the writ Court without there being any impediment for the same or any stay order having been granted in special appeal would thus attract the Code of compulsory cost as enunciated by the Hon'ble Supreme Court in the case of Subrata Roy Sahara Vs. Union of India reported in (2014) 8 SCC 470 . For the sake of convenience, the relevant paragraphs of Subrata Roy Sahara (supra) are reproduced as under:- “151. We should not be taken to have suggested, that the cost of litigation should be enhanced. It is not our suggestion, that Court fee or other litigation related costs, should be raised. Access to justice and related costs, should be as free and as low, as possible. What is sought to be redressed is a habituation, to press illegitimate claims. This practice and pattern is so rampant, that in most cases, disputes which ought to have been settled in no time at all, before the first Court of incidence, are prolonged endlessly, for years and years, and from Court to Court, upto the highest Court. 152. This abuse of the judicial process is not limited to any particular class of litigants. The State and its agencies litigate endlessly upto the highest Court, just because of the lack of responsibility, to take decisions. So much so, that we have started to entertain the impression, that all administrative and executive decision making, are being left to Courts, just for that reason. In private litigation as well, the concerned litigant would continue to approach the higher Court, despite the fact that he had lost in every Court hitherto before. The effort is not to discourage a litigant, in whose perception, his cause is fair and legitimate. The effort is only to introduce consequences, if the litigant's perception was incorrect, and if his cause is found to be, not fair and legitimate, he must pay for the same. In the present setting of the adjudicatory process, a litigant, no matter how irresponsible he is, suffers no consequences. Every litigant, therefore likes to take a chance, even when counsel's advice is otherwise. 153. Does the concerned litigant realize, that the litigant on the other side has had to defend himself, from Court to Court, and has had to incur expenses towards such defence? Every litigant, therefore likes to take a chance, even when counsel's advice is otherwise. 153. Does the concerned litigant realize, that the litigant on the other side has had to defend himself, from Court to Court, and has had to incur expenses towards such defence? And there are some litigants who continue to pursue senseless and ill-considered claims, to somehow or the other, defeat the process of law. The present case, is a classic illustration of what we wish to express. Herein the regulating authority has had to suffer litigation from Court to Court, incurring public expense in its defence, against frivolous litigation. Every order was consistently and systematically disobeyed. Every order passed by the SEBI was assailed before the next higher authority, and then before this Court. Even though High Courts have no jurisdiction, in respect of issues regulated by the SEBI Act, some matters were taken to the High Court of Judicature at Allahabad (before its Lucknow Bench). Every such endeavour resulted in failure, and was also sometimes, accompanied with strictures. Even after the matter had concluded, after the controversy had attained finality, the judicial process is still being abused, for close to two years. A conscious effort on the part of the legislature in this behalf, would serve several purposes. It would, besides everything else, reduce frivolous litigation. When the litigating party understands, that it would have to compensate the party which succeeds, unnecessary litigation will be substantially reduced. At the end of the day, Court time lost is a direct loss to the nation. It is about time, that the legislature should evolve ways and means to curtail this unmindful activity. We are sure, that an eventual determination, one way or the other, would be in the best interest of this country, as also, its countrymen.” 15. Likewise the Hon'ble Supreme Court in the case of Vidya Dhar Sharma vs. G.B. Patnaik and others reported in (2001) 10 SCC 633 in similar circumstances have proceeded to impose cost on the respondent-contemnor where the compliance was made only after contempt notices had been issued by the contempt Court. Relevant observations of the Hon'ble Supreme Court in the case of Vidya Dhar Sharma (supra) are reproduced as under:- “3. It is pertinent to notice that it is on 2nd February, 2001 that notice in this contempt petition was issued. Relevant observations of the Hon'ble Supreme Court in the case of Vidya Dhar Sharma (supra) are reproduced as under:- “3. It is pertinent to notice that it is on 2nd February, 2001 that notice in this contempt petition was issued. Action has been taken by the Respondents only pursuant to the notice having been issued. We are quite convinced that but for this notice being issued, nothing would have been done by the Respondents. As is evident from the fact, they did not even have the courtesy of responding to the lawyers notice dated 18th November, 2000 or applying to this Court for extension of time. It is only the pain and fear of being punished for contempt that seems to have persuaded them to take action and comply with the direction of this Court. 5. ………... While absolving Respondent Nos. 2 and 3, we dispose of these contempt petitions by directing Respondent No. 1 to pay Rs. 5,000 as costs. The costs be paid within two weeks from today.” 16. Accordingly, keeping in view the aforesaid discussion and the law laid down by the Hon'ble Supreme Court in the case of Subrata Roy Sahara (supra) and Vidya Dhar Sharma (supra) and the order of the writ Court having been complied with but belatedly only after issue of contempt notice by this Court, as such, seeing the conduct of the respondent contemnor, this Court imposes a token cost of Rs. 10,000/- to be paid by the respondent-contemnor within a period of thirty days from production of certified copy of this order before the respondent-contemnor to the petitioners by way of a cheque/demand draft. 17. After the aforesaid order had been dictated, Sri Pankaj Khare, learned Additional Chief Standing counsel submits that the order was not complied on the ground of there being a legal opinion of filing of a special appeal against the order passed by the writ Court and not to comply with the order of the writ Court till the decision of the special appeal. The said argument is indeed strange and totally belied from records inasmuch as this plea does not find place in any of the affidavits that had been filed by the respondent-contemnor. The said argument is indeed strange and totally belied from records inasmuch as this plea does not find place in any of the affidavits that had been filed by the respondent-contemnor. However, taking Sri Pankaj Khare, learned Additional Chief Standing counsel on his face value and seeing that the argument is being advanced by a senior law officer holding the post of the learned Additional Chief Standing counsel, as such, this argument is recorded. However, as already indicated above this plea/ground does not find place in any of the affidavit that have been filed by the respondent-contemnor except an averment made in para 6 of the affidavit dated 31.10.2018 wherein it has been contended that as soon as order dated 21.02.2018 was received that it was sent for legal opinion and after receipt of legal opinion, a special appeal no. 490 of 2018 was filed. There is no averment in the affidavit of there being any legal opinion of not complying with the order passed by the writ Court till the decision on the special appeal. Even otherwise, this Court does not believe that any such legal opinion would have been given of not complying with the order passed by the writ Court till such time a special appeal is filed and the fate of the same sees the light of the day. However, Sri Khare insisted that this argument should be recorded in the order and consequently, this Court has proceeded to record the said argument of Sri Khare, learned Additional Chief Standing counsel. 18. Before parting with the case this Court may record that the Court is extremely pained and anguished to see the manner in which the contempt cases are being contested on behalf of the respondents by filing undated applications, undated affidavits and even advancing such arguments which do not have any basis in the pleadings. Accordingly, let a copy of this order be sent by Senior Registrar of this High Court to the Principal Secretary (Law) for information and necessary action within thirty days.