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2018 DIGILAW 764 (GUJ)

B. R. Acharya v. Pankajkumar B. Thaker

2018-06-20

R.SUBHASH REDDY, VIPUL M.PANCHOLI

body2018
JUDGMENT : Vipul M. Pancholi, J. This Misc. Civil Application is filed under the provisions of the Contempt of Courts Act, 1971 by the applicant alleging that the respondents have intentionally and willfully violated the directions issued by this Court in the order dated 01.08.2016 passed in Letters Patent Appeal No.407 of 2010 with Letters Patent Appeal No.423 of 2010, therefore, appropriate proceedings be initiated against the respondents under the Contempt of Courts Act, 1971. 2. Heard learned advocate Mr. M.D. Rana appearing for the applicant and learned Assistant Government Pleader Mr. K.M. Antani for the respondents. 3. Learned advocate for the applicant submitted that the applicant was dismissed from service on the ground of absenteeism and therefore he initiated proceedings by filing petition before this Court. Ultimately, the Division Bench of this Court passed an order on 01.08.2016 in Letters Patent Appeal No.407 of 2010 with Letters Patent Appeal no.423 of 2010, by which, this Court allowed the appeals and quashed and set aside the order passed by the learned Single Judge as also the order passed by the Gujarat Civil Service Tribunal and the order of dismissal passed by the respondent No.1 Director, Social Defence Department. This Court directed the respondents to pay all the consequential benefits as if petitioner is deemed to have been continued in service till the age of superannuation i.e. 31.01.1996. Further direction was given to pay the retiral dues with simple interest at the rate of 6% per annum within a period of six weeks from the date of receipt of the said order. However, the respondents did not comply with the said directions and therefore the applicant has filed the present Misc. Civil Application under the provisions of the Contempt of Courts Act. 4. Learned advocate Mr. Rana thereafter referred further affidavit filed by the applicant and contended that though the respondents have paid an amount of Rs.52,84,387/- including the interest as directed by this Court during the pendency of these proceedings, the respondents have not given the higher grade scale to the applicant and thereby the respondents have not fully complied with the directions issued by this Court. Thus, appropriate proceedings be initiated against the respondents for non-compliance of the directions issued by this Court. 5. Learned advocate Mr. Rana has placed reliance upon the decision rendered by this Court in the case of Union of India & others v. Maj. Thus, appropriate proceedings be initiated against the respondents for non-compliance of the directions issued by this Court. 5. Learned advocate Mr. Rana has placed reliance upon the decision rendered by this Court in the case of Union of India & others v. Maj. Virendraraj J. Kharod, (1987) 2 GLH 111 , the decision in the case of Vinaykant G. Kargasthala v. State of Gujarat, (2018) 2 GLR 1059 and also the decision in the case of Natvarlal Motilal Chavda v. State of Gujarat rendered in Letters patent Appeal No.185 of 2017. 6. On the other hand, learned AGP Mr. Antani has referred to various affidavits-in-reply filed by the respondents and contended that respondents have fully complied with the directions issued by this Court in the order dated 01.08.2016 passed in Letters Patent Appeal No.407 of 2010 with Letters Patent Appeal No.423 of 2010 and thereby paid total amount of Rs.52,84,387/- including the interest at the rate of 6% per annum as ordered by this Court. It is submitted that this Court has not given any direction to pay the higher grade scale to the applicant as contended by the learned advocate for the applicant. 7. Learned AGP submitted that the scheme of higher grade scale introduced by the Government by way of G.R. dated 16.08.1994 would not be automatically applicable to the applicant. Whether the applicant is entitled for the higher grade scale or not has not been examined by this Court in the aforesaid order and therefore it cannot be said that the respondents have intentionally and willfully disobeyed the directions issued by this Court. He, therefore, requested that this application be dismissed. 8. Learned AGP has placed reliance upon the decision rendered by the High Court of Rajasthan in the case of Ashok Dhariwal v. Jai Narain Vyas University, (2000) 3 WLN(Raj) 632. 9. Having heard the learned advocates appearing for the parties and having gone through the material produced on record, it is revealed that this Court passed an order on 01.08.2016 in Letters Patent Appeal No.407 of 2010 with Letters Patent Appeal No. 423 of 2010. In the said order, this Court has observed in para 7.10 as under:- "7.10 The appellant has completed more than 30 years of service. In the said order, this Court has observed in para 7.10 as under:- "7.10 The appellant has completed more than 30 years of service. Further, since the department has failed to prove charge of absenteeism of the appellant, and therefore, he is deemed to have been continued in service till the age of superannuation i.e. 31.01.1996 and would be entitled for all consequential benefits from the above date. However, retrospective effect to the order of dismissal is given on 19.10.1989. If the appellant is not paid salary and permissible allowances from the above date viz. 19.10.1989 he is entitled for such salary and allowances in Class-III post on the basis of last pay drawn from the date of superannuation. Other retiral dues viz. pension, gratuity and other permissible retiral dues be paid to the appellant in accordance with law with simple interest of 6% p.a. within a period of six weeks from the date of receipt of this order." 10. It is alleged that the respondents have not complied with the directions issued by this Court in the aforesaid order and therefore the proceedings under the provisions of the Contempt of Courts Act be initiated against the respondents. From various affidavits filed by the respondents, it is revealed that the respondents have paid different amounts on different dates under different heads to the applicant. From the last affidavit dated 20.03.2018 filed on behalf of the respondent No.1, it is clear that the respondents have paid total amount of Rs.52,84,387/- including interest at the rate of 6% per annum to the applicant. However, the grievance of the applicant is that though he is entitled to receive the benefit of higher grade scale, such benefit has not been granted to him. It is contended by the learned advocate for the applicant that all consequential benefits be given to the applicant as per the order of this Court which includes the benefit of grant of higher grade scale. 11. In the case of Vinaykant G. Kargasthala, the learned Single Judge of this Court observed in para 32 as under:- "32. In view of above facts and circumstances, this petition succeeds. Thereby, the petition needs to be allowed as prayed for. 11. In the case of Vinaykant G. Kargasthala, the learned Single Judge of this Court observed in para 32 as under:- "32. In view of above facts and circumstances, this petition succeeds. Thereby, the petition needs to be allowed as prayed for. Thereby, respondents are directed to release the higher pay scale to the petitioner when he has completed 9 years on the post of Scientific Officer on 2.3.2003 i.e. w.e.f. 3.3.2003 till his retirement on superannuation on 31.10.2009 and to pay arrears of pay and allowances for the period between 3.3.2003 to 31.10.2009 and to recalculate the retirement benefit and pension and to pay arrears within four months from the date of receipt of writ of this judgment. If respondents fail to pay arrears within four months, then, they shall be liable to pay 6% interest on such amount from due date till the actual payment." 12. In the case of Natvarlal Motilal Chavda, the Division Bench of this Court observed in para 20 as under:- "20. At this stage, Mr. G.M. Joshi, learned counsel for the appellant requests for consequential benefits of allowing the appeal and setting aside the order of learned Single Judge be conferred upon the appellant, including that of seniority, promotion, pension, gratuity, retiral dues, pension, difference of salary, etc. within stipulated time. Considering the facts of the case, we are inclined to direct the respondent - Government of Gujarat to release all such consequential benefits to the appellant within a period of 4 weeks from today." 13. In the case of Maj. Virendraraj, the Division Bench of this Court observed in para 11 as under:- "11. We, therefore, fully agree with the reasonings and conclusions reached by the learned single Judge and hold that the C.O. had dismissed the charges against the respondent. It is not disputed that once it is held that the C.O. had dismissed the charges against the respondent, General Court-martial could not have been convened to try the respondent. It must, therefore, be held that trial of the respondent by General Court-martial was illegal and without jurisdiction and consequently the decision rendered by the General Court martial deserves to be quashed. We, therefore, confirm the order passed by the learned single Judge quashing and setting aside the impugned orders at Annexures 'R', 'S' and 'W' to the petition-Special Civil Application No. 497 of 1981. We, therefore, confirm the order passed by the learned single Judge quashing and setting aside the impugned orders at Annexures 'R', 'S' and 'W' to the petition-Special Civil Application No. 497 of 1981. We also confirm the declaration given by him that the respondent continues in service without any break, and is entitled to all the consequential benefits as if the impugned orders were not passed at all. It is true that as a result of such a declaration, the respondent would not only be entitled to all the monetary benefits, such as pay and allowances, arrears of pay and allowances, revised pay scale if any, etc., but also to other benefits such as earned leave or encashment of leave, which he has not been able to enjoy and the benefits of leave travel concession, promotions etc. But once the dismissal order is held to be illegal and the respondent is reinstated in service, these are consequential benefits which flow his reinstatement in service. In other words, the respondent would be entitled to all the benefits as if dismissal order were not passed and he continues to be in service. So far as the back wages or salary is concerned, as held by the learned single Judge, he will not be entitled to such salary only to the extent it is established that he was gainfully employed. In other words, deduction from the back wages and other benefits due to him will be made only to the extent of the amount which he is proved to have earned by being gainfully employed. We thus confirm the reliefs granted by the learned single Judge." 14. The aforesaid decisions upon which the reliance is placed by learned advocate for the applicant would not render any assistance to him. The learned Single Judge of this Court in the case of Vinaykant, after examining the eligibility of the concerned petitioner granted higher pay-scale to the concerned petitioner after referring to GRs dated 05.07.1991 and 16.08.1994. The said petition was filed for the said purpose. Similarly, in the case of Maj. The learned Single Judge of this Court in the case of Vinaykant, after examining the eligibility of the concerned petitioner granted higher pay-scale to the concerned petitioner after referring to GRs dated 05.07.1991 and 16.08.1994. The said petition was filed for the said purpose. Similarly, in the case of Maj. Virendraraj, the Division Bench of this Court observed that if the concerned respondent continues in service without any break and is entitled to all the consequential benefits as if the impugned orders were not passed and therefore he would be entitled to all the monetary benefits, such as pay and allowances, arrears of pay and allowances, revised pay-scale, if any, etc. as well as earned leave or encashment of leave and he would be entitled for consequential benefits which flow from his reinstatement in service. In the present case, there is no reference with regard to payment of higher grade scale to the applicant by this Court while passing the order in Letters Patent Appeal No.407 of 2010 with Letters Patent Appeal No.423 of 2010. 15. In the case of Ashok Dhariwal, the Rajasthan High Court has considered the issue with regard to grant of selection grade. In the said case, petitioner remained in jail for about eight and half years and thereafter he was reinstated in service on the basis of the decision rendered by the High Court. It was held by the High Court that the concerned petitioner shall be deemed to be continued in service. The said petitioner, therefore, asked for the grant of selection grade. However, the concerned Rules were not only requiring continuity in service but also satisfactory performance of service for a period of 8 years for grant of selection grade. Thus, in the said case, the Rajasthan High Court held that petitioner was not entitled for selection grade even assuming that his services were continued as he was in jail for a period of eight and half years. 16. In the present proceedings, we are not examining the eligibility of the applicant to receive the higher grade scale but we are examining the issue whether the respondents have intentionally and willfully disobeyed the directions issued by this Court in the aforesaid order? 17. 16. In the present proceedings, we are not examining the eligibility of the applicant to receive the higher grade scale but we are examining the issue whether the respondents have intentionally and willfully disobeyed the directions issued by this Court in the aforesaid order? 17. From the material placed on record, we are of the view that when the respondents have paid total amount of Rs.52, 84, 387/- including the interest at the rate of 6% per annum under different heads and if the respondents are of the view that the grant of higher grade scale is not automatic and the words 'consequential benefits' do not include the grant of higher grade scale automatically, we are of the view that the respondents have not intentionally and willfully violated the directions issued by this Court in the order dated 01.08.2016 passed in Letters Patent Appeal No.407 of 2010 with Letters Patent Appeal No.423 of 2010. 18. In view of the aforesaid facts and circumstances of the case, we see no reason to continue with the present proceedings filed under the provisions of Contempt of Courts Act. Accordingly, the application is dismissed. Consequently, civil applications also stand disposed of. However, liberty is reserved to the applicant to file appropriate proceedings for grant of higher grade scale as per the government resolutions issued by the respondents from time to time. As and when such proceedings are filed the same shall be decided on its own merits without being influenced by any of the observations made in this order.