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2018 DIGILAW 71 (JK)

J&K SRTC v. ALL J&K WORKS UNION

2018-02-07

M.K.HANJURA, RAMALINGAM SUDHAKAR

body2018
ORDER : M.K. HANJURA, J. 1. Respondents, the erstwhile employees of the Government Transport Undertaking (for short called and referred to hereinafter, "GTU") filed a writ petition bearing SWP No. 3082-J of 2010 in a representative capacity through their registered Union, pleading therein that they have been appointed prior to the year 1976 as Daily Rated Workers by the GTU. They were being paid dearness allowance as admissible under Government Rules in the same manner as was being paid to the other staff/employees of the GTU. They proceeded to state that they were also granted and extended all such benefits as were available to the other employees of the GTU working on regular basis in the shape of casual leave, medical leave and holidays etc. They further contended that on the basis of the length of their service, they attained the status of temporary employees of the GTU and were entitled to be regularized/confirmed on their respective posts. However, before such an order could be passed, the Government vide order No. 25-TR of 1979 dated 27.03.1979 decided to place the services of the employees of the GTU at the disposal of the J&K State Road Transport Corporation (for short Corporation) established on 01.09.1976 in pursuance of the Central Road Transport Corporation Act. The petitioners on the above set of facts craved the indulgence of this Court for the grant of the following reliefs in their favour. (a) Writ of Mandamus commanding the respondents to release the arrears of Cola of the petitioners herein (whose names are given in Annexure-A) from 1999 to 2012 as per communication of respondent No. 5-Managing Director vide his letter No. JKSRTCF/Pen-II/PS/MD/044 dated 15.07.2014 and cleared by the Finance Department as reflected in Govt. Order No. 110-TR/AF of 2014 dated 10.12.2014 read with Order No. 032 of 2013 dated 30.01.2013. (b) Writ of Mandamus commanding the respondents to release all the benefits including Leave Salary, H.R.A and other consequential benefits to which the petitioners (whose names are given in the list Annexure A) are entitled t as permanent Govt. Employees. (c) Any other appropriate writ, order or direction/relief, the Hon'ble Court deems fit and proper, in the facts and circumstances of the case, be also granted in favour of the petitioner against the Respondents with Costs. 2. Employees. (c) Any other appropriate writ, order or direction/relief, the Hon'ble Court deems fit and proper, in the facts and circumstances of the case, be also granted in favour of the petitioner against the Respondents with Costs. 2. The Writ Court accorded consideration to the petition of the petitioners and vide its judgment dated 01.07.2013 directed as under: "26. This petition is, accordingly, allowed. The impugned Government order dated 11.09.2003 read with the order contained in the impugned communication dated 06.07.2010 addressed by Under Secretary to Government, Finance Department to the petitioner are quashed. Any Government order on the basis of which the contents of the impugned communication dated 06.07.2010 are based shall be treated as declared inconsequential and ineffective. The respondents in general, and respondents 1 to 3, in particular, are directed to take immediate necessary steps to make the offer of exercise of the requisite option to the petitioners. In case any of the members of the petitioner union has retired, the benefits of option shall also be extended to such retired employee. Needless to mention, that the benefit shall be made available and extended to deceased members of the petitioner union as well. Depending upon the option so exercised by the members of the petitioner union, the respondents shall take further steps to settle the matters. The needful shall be done within three months from the date a copy of this judgment is served on the respondents. 27. This is a case where petty government servants have been engaged in attritional litigation by the respondents for decades together. The conduct of the State-respondents as reflected in this Judgment, particularly their asking the petitioners to withdraw Court cases and then resile from the assurance extended to the petitioners, would warrant award of costs. However, taking a lenient view, I refrain from making any such order. Let the parties bear their respective costs. 3. The appellants-failed to comply with the terms of the aforesaid judgment of this Court, within the stipulated period of three moths from the date the copy of the judgment was served upon them, which constrained the respondents to file the contempt petition. Let the parties bear their respective costs. 3. The appellants-failed to comply with the terms of the aforesaid judgment of this Court, within the stipulated period of three moths from the date the copy of the judgment was served upon them, which constrained the respondents to file the contempt petition. The contempt Court after looking into the entire gamut of the case passed an order on 12.12.2017, that reads as under: "On account of implementation of the judgment passed by this Court on 01.07.2013, the Transport Department had found the petitioners entitled for an amount of Rs. 6.6 crores for payment of arrears of COLA in their favour. Time and again respondents sought and were liberally granted time to implement the judgment. Concern of the Transport Department was also registered with reference to non-availability of the funds as back as on 01.11.2017. In terms of the order dated 01.11.2017, the issue with reference to implementation of the judgment of the Court regarding release of COLA amount, was made subject to disposing of the assets of the corporation but that was declared as interest arrangement of the Government with the State Road Transport Corporation (SRTC). One more opportunity was granted to Commissioner/Secretary to Government Transport Department to release the amount and in default the Court had made it clear to proceed against the officer. Hide and seek policy adopted by the respondents while delaying the implementation of the judgment, is itself sufficient to form the basis for declaring them of having committed contempt of the Court. That apart, the respondents having assessed the claim of the petitioners with reference to their entitlement as a source of implementation of the judgment, has also been done. Faith and confidence of the public in the judicial system cannot be allowed to be eroded at the hands of few officers of the Government. After all, the strength of the democratic set up in the country has basis for ensuring that the rule of law is supreme and none can have the power to question or have the strength to delay the implementation of the judgment. Court has no option but to seek personal appearance of the respondents to proceed against them. In the above background, let the respondents-Commissioner Secretary to Government Transport Department and Managing Director, J&K State Road Transport Corporation, remain present in person on the next date of hearing with compliance. Court has no option but to seek personal appearance of the respondents to proceed against them. In the above background, let the respondents-Commissioner Secretary to Government Transport Department and Managing Director, J&K State Road Transport Corporation, remain present in person on the next date of hearing with compliance. It is made clear that on the date of appearance both the officers shall appear with compliance and without any excuse. They shall be dealt with instantly and rule will be framed against them for committing contempt of Court. The Court shall have no option but to pass orders with reference to ensuring that they remain present in the Court on day to day basis till the matter is decided and the result of the contempt announced in their presence." 4. Dissatisfied with the order of the contempt Court, the appellants have challenged the same in this Letters Patent Appeal, inter alia, on the grounds that the same has the trapping of a judgment in as much as it has decided the liabilities of appellants. It has also been pleaded that the order has been passed by the learned Single Judge inan improper exercise of jurisdiction vested in him. The order is suffering from the error of excessive exercise of jurisdiction passed beyond the scope of the basic judgment interse the parties, whereby the liability to meet the release of benefits was specifically fixed upon the Government. On the premise, it has been pleaded that the order under appeal be set aside. 5. Heard and Considered. 6. Learned counsel representing the appellants has vehemently argued that the order impugned in the appeal could have been passed by the contempt Court as it is within the domain and power of the Government to accord consideration to the payment of COLA and the other benefits in favour of the respondents as have accrued to them by virtue of the judgment passed by the learned Writ Court. 7. Per contra, learned counsel representing the respondents has argued that the appeal of the appellants is maintainable in the present form. He has stated that under the Jammu and Kashmir Contempt Courts Act, 1997 (hereinafter referred to as "the Act"), an appeal in terms of Section 19 shall lie against an order or decision of the High Court passed in the exercise of its jurisdiction to punish for contempt. He has stated that under the Jammu and Kashmir Contempt Courts Act, 1997 (hereinafter referred to as "the Act"), an appeal in terms of Section 19 shall lie against an order or decision of the High Court passed in the exercise of its jurisdiction to punish for contempt. He has proceeded to state that it is only an order imposing the punishment for contempt that is made appealable under Section 19 of the Act and no other order falls within its ambit, scope and jurisdiction. He has further submitted that even the Letters Patent Appeal under Clause 12 of the Letter Patent would be maintainable against the order impugned for the reason that the order impugned is only an interlocutory order where nothing has been decided on merits. He would further urge that given the nature of the order passed by the Contempt Court which is impugned in this appeal, it cannot be said that the Contempt Court while directing the personal appearance of the contemnors before the Court has made any observation as could be said that the learned Court has travelled beyond the scope of the order alleged to have been disobeyed. He further submits that the appellants have ample opportunity to explain their position before the Contempt Court and that the appeal is neither maintainable under Section 19 (1) of the Act nor can it be treated as a Letters Patent Appeal under Clause 12 of the Letters Patent. 8. Sub-Section 1 (a) & (b) of Section 19 of the Act lays down as under: "19. Appeal (i) An appeal shall lie as of right from any order or decision of the High Court in the exercise of its jurisdiction to punish for contempt;- (a) Where the order or decision is that of a single Judge, to a bench of less than two judges of the Court: (b) Where the order of decision is that of bench, to the Supreme Court. ............................................................" 9. What gets revealed from a bare perusal of Section 19 (1) supra is that an appeal would lie only against an order or decision of the High Court passed in the exercise of its jurisdiction to punish for contempt. It also lays down the forum where such an appeal can be instituted. ............................................................" 9. What gets revealed from a bare perusal of Section 19 (1) supra is that an appeal would lie only against an order or decision of the High Court passed in the exercise of its jurisdiction to punish for contempt. It also lays down the forum where such an appeal can be instituted. Section 94 of the Constitution of Jammu and Kashmir, which is in tune and in line with Article 215 of the Constitution of India, provides that the High Court shall have all the powers of such a Court including the power to punish for contempt of itself or of the Courts subordinate to it. On the strength of these provisions which are loud and clear, an appeal Under Section 19 (1) of the Act would lie only in a case wherein the High Court has passed an order or made a decision in exercise of its jurisdiction to punish for contempt. Resort can in the behalf be had from the law laid down in the case titled "B.N. Taneja v. Bhaja Lal," reported in (1988) 3 SCC 26 , paragraph 12, of which is relevant for consideration and is reproduced below verbatim:- "12. Right of appeal is a creature of the statute and the question whether there is a right of appeal will have to be considered on an interpretation of the provision of the statute and on the ground of propriety or any other consideration. In this connection, it may be noticed that there was no right of appeal under the Contempt of Courts Act, 1952. It is for the first time that under Section 19 (1) of the Act, a right of appeal has been provided for. A contempt is a matter between the Court and the alleged contemnor. Any person who moves the machinery of the Court for contempt only brings to the notice of the Court certain facts constituting contempt of Court. After furnishing such information he may still assist the Court, but it must always be borne in mind that in a contempt proceeding there are only two parties, namely, the Court and the contemnor. It may be one of the reasons which weighed with the Legislature in conferring any right of appeal on the petitioner for contempt. The aggrieved party under Section 19 (1) can only be the contemnor who has been punished for contempt of Court." 10. It may be one of the reasons which weighed with the Legislature in conferring any right of appeal on the petitioner for contempt. The aggrieved party under Section 19 (1) can only be the contemnor who has been punished for contempt of Court." 10. In the case titled "Midnapore Peoples' Coop. Bank Ltd. v. Chunilal Nanda and Others", reported in(2006) 5 SCC 399, the Supreme Court after an extensive study of the import and scope of various decisions, summarized the law on the subject by directing as under:- "11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized thus; I. An appeal under Section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt. II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution III. In a proceeding for contempt, the High Court can decide whether any contempt of Court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties. IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will be in the exercise of "jurisdiction to punish for contempt" and, therefore, appealable under Section 19 of CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under Section 19 of the Act, can also encompass the incidental or inextricably connected directions. V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is without remedy. V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is without remedy. Such an order is open to challenge in an intra-Court appeal (if the order was of a learned Single Judge and there is a provision for an intra-Court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases)". 11. Viewed from the perspective of the law detailed above, the order impugned does have the trapping of an order passed by the Contempt Court in exercise of its jurisdiction to punish for contempt. It is an order simpliciter, directing the appellants to appear before the Court along with the compliance of the judgment passed by the Writ Court and that the Rule will be framed against the appellants if they commit the contempt of Court. This order as is repeated here does have any lineage or descent of an order to punish for contempt. It needs must be said that the appellants can project their cases before the Contempt Court and explain that the disobedience of the judgment alleged to have been violated by them is neither deliberate, nor willful nor intentional and the Contempt Court has the jurisdiction to consider the plea, if any taken by the appellants in accordance with the law. On the basis of the above what can be logically concluded is that the objection raised by the respondents regarding the maintainability of the appeal is based on reason, logic and the law, as a consequence of which it deserves to be accepted. 12. This takes us to another plea raised by the learned counsel for the appellants that even if it is assumed that the appeal against the order impugned is not maintainable under Section 19 (1) of the Act, yet the same would be maintainable under Clause 12 of the Letters Patent. We have given our thoughtful consideration to this aspect of the matter also but we do not find any merit or substance in this argument of the learned counsel for the appellants-State for the simple reason that Clause 12 of the Letters Patent provides for an appeal from a judgment of the learned Single Judge passed in exercise of original jurisdiction to the Division Bench. The connotation and meaning of the word "Judgment" in terms of Clause 12 of the Letters Patent, has been well explained in a catena of the judgments rendered by the Hon'ble Supreme Court and the other High Courts. The word "Judgment" brings within its sweep and folds the finality of the judgment. The judgment could either be a final judgment, preliminary judgment or intermediary judgment or interlocutory judgment as has been detailed in the law laid down in Midnapur Peoples Co-operation Bank case. It shall have the origin and strips of a judgment only if it decides some issue or right sinter-se the parties finally. The intermediary and interlocutory orders passed during the course of the proceedings which do not finally decide and determine the rights or the issues of the parties cannot fall within the purview of the word "Judgment" amenable to the appellate jurisdiction of the Division Bench under Clause 12 of the Letters Patent. 13. In the light of the aforesaid analysis, we find that the appeal is not maintainable under Section 19 (1) of the Act or under Clause 12 of the Letter Patent as a consequence of which the appeal of the appellants is dismissed along with connected MP(s). There shall, however, be no order as to the costs.