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2019 DIGILAW 370 (CAL)

Sudeshna Mitra v. Jayasri Roychowdhury

2019-03-15

SUBRATA TALUKDAR

body2019
JUDGMENT : 1. The complaint in this Contempt Application (CPAN 64 of 2018) connects to the alleged contumacious conduct of the alleged Sole Contemnor/the Director of Public Instruction (DPI). The Applicant to CPAN 64 of 2018 alleges that the DPI deliberately did not comply with the unequivocal directions passed by this Court through its order dated 17th May, 2017 deciding the parent Writ Petition. 2. Mr. Basu, Learned Counsel appearing for the Applicant, submits that this Court, inter alia, held as follows on the 17th of May, 2017 (supra). (a) That the Memo of the State Govt. dated 10th November, 1994 modified the earlier Memo dated 21st May, 1990 by withdrawing the mandatory condition relatable to an employee completing 5 years of continuous service in a previous college. Thus, the State Respondents were wrong through their Memo dated 21st May, 1990 to impose upon the Applicant the mandatory condition of completing at least 5 years of service in the previous college. (b) This Court also held that the requirement of the Applicant to be confirmed in service through the College Service Commission requires to be waived since the petitioner was originally appointed to a minority institution and thereafter shifted to a permanent vacancy in a Government College. Since the minority institution to which the petitioner was appointed was not required to fill up its vacancies through the College Service Commission, the petitioner could not be treated as a regularly recruited lecturer. It would be relevant to mention in this connection that the DPI had approved the initial appointment of the petitioner in the minority institution on the 13th of April, 2000. (c) This Court had further held on 17th of May, 2017 that the claim of the petitioner was identical to one Mrs. Papia Sengupta who had served in the substantive post of lecturer at Serampore College. 3. Being satisfied on all of the above points (a), (b) and (c), (supra), this Court directed the DPI to revisit the issue in accordance with law and in the light of the observations made in the judgement dated 17th of May, 2017. 4. Mr. Basu next submits that the order of the DPI/ the alleged Sole Contemnor dated 25th of January, 2018 is exactly the opposite of what was intended by the order of this Court dated 17th of May, 2017. All the issues, viz. 4. Mr. Basu next submits that the order of the DPI/ the alleged Sole Contemnor dated 25th of January, 2018 is exactly the opposite of what was intended by the order of this Court dated 17th of May, 2017. All the issues, viz. (a), (b) and (c) above, in respect of which this Court made its clear observations, have been reversed by the DPI in the name of revisiting the issue. 5. Drawing the attention of this Court to the operative portion of the order of the DPI dated 25th of January, 2018, Mr. Basu submits that vide Paragraphs (i) & (ii) of the order, the DPI has treated the petitioner and the said Mrs. Papia Sengupta as not alike in service. 6. Mr. Basu submits that the order of the DPI dated 25th of January, 2018 has proceeded to completely reassess the service conditions of the petitioner, notwithstanding the fact that this Court has recorded by its order dated 17th of May, 2017 the stand of Ld. State Counsel to the effect that the facts connected to both Ms. Papia Sengupta and the petitioner are identical. Accordingly, the stand is taken by the Ld. Counsel for the Applicant that the DPI/alleged Sole Contemnor has acted is a manner wilfully frustrating the judgement dated 17th of May, 2017. 7. It is further argued by Mr. Basu that notwithstanding the clear recording by this Court based on the submissions of Ld. State Counsel that the GO dated 10th November, 1994 has modified the GO dated 21st May, 1990 thereby dispensing with the requirement of continuous service by the Applicant. On the other hand, the DPI at Paragraphs (iii), (iv), (v) & (vi) of the order dated 25th January, 2018 has taken into consideration several other GOs and denied benefit to the petitioner/applicant. 8. Mr. Basu submits that the GOs as considered by the DPI at Paragraphs (iii) to (vi) (supra) could have been made available through Ld. Counsel earlier before this Court at the hearing of the writ petition. Therefore, the further stand is taken on behalf of the Applicants, that Paragraphs (iii) to (vi) are in the nature of an afterthought to deny the petitioner/applicant her legitimate claim. 9. Per contra, Mr. Dutta, Ld. Senior Government Advocate, submits that this Court directed the DPI to revisit the issue in accordance with law and pass a reasoned order. Therefore, the further stand is taken on behalf of the Applicants, that Paragraphs (iii) to (vi) are in the nature of an afterthought to deny the petitioner/applicant her legitimate claim. 9. Per contra, Mr. Dutta, Ld. Senior Government Advocate, submits that this Court directed the DPI to revisit the issue in accordance with law and pass a reasoned order. Therefore the DPI, in the light of the observations made in the order dated 17th May, 2017, applied the GOs necessary to be applied while revisiting the issue of grant of benefits as claimed by the petitioner. It is submitted that since the DPI was under a duty to act in accordance with law and was permitted to revisit the issue as well as pass a reasoned order consequent thereto, the DPI did not act in deliberate and/or wilful violation of the order dated 17th of May, 2017. 10. Having heard the parties and considering the materials placed, the attention of this Court is drawn to the judgement of the Hon'ble Division Bench reported in In Re: S.K. Saha& Anr. vs. Gokul Chandra Dhar, (1988) CriLJ 21. Paragraph 9 of the said judgement is apropo to the present discussion and reads as follows:- "9. In our considered view a proceeding for civil contempt cannot be predicated upon the disobedience of an order or direction which provides scope for different reasonable and rational interpretations. Similarly, if the direction contained in an order is subject to or dependent upon determination of some other facts the violation of such directions cannot give rise to a proceeding for civil contempt." 11. The attention of this Court is also drawn to Paragraph 6 of In Re: J.S. Parihar vs. Ganpat Duggar & Ors, (1996) 6 SCC 291 . Paragraph 6, inter alia, reads as follows:- "The question then is whether the Division Bench was right in setting aside the direction issued by the Learned Single Judge to redraw the seniority list. It is contended by Mr. Paragraph 6, inter alia, reads as follows:- "The question then is whether the Division Bench was right in setting aside the direction issued by the Learned Single Judge to redraw the seniority list. It is contended by Mr. S. K. Jain, the learned counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision taken by the Government in preparation of the seniority list in the light of the law laid down by three benches, the learned Judge cannot come to a conclusion whether or not the respondent had willfully or deliberately disobeyed the orders of the Court as defined under Section 2(b) of the Act. Therefore, the learned Single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that admittedly, the respondents had prepared the seniority list on 2-7-1991. Subsequently promotions came to be made. The question is whether seniority list is open to review in the contempt proceedings to find out whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the willful violation of the order. After reexercising the judicial review in contempt proceedings a fresh direction by the learned Single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the Single Judge; the Division Bench corrected the mistake committed by the learned Single Judge. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the Single Judge; the Division Bench corrected the mistake committed by the learned Single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned Single Judge when the matter was already seized of the Division Bench." 12. Having regard to pronouncements of the law as above, this Court is clear in its mind that however erroneous the exercise conducted by the DPI may arguably be, the fact that the DPI took into account materials not extraneous to the issue while revisiting the issue in terms of the order dated 17th May, 2017, does not qualify the conduct of the DPI to be treated as wilful and deliberate. This Court cannot be unmindful of the fact that inspite of making observations in its order dated 17th May, 2017 (supra), still the issue was remanded by this Court to the DPI to be considered in accordance with law. 13. The fact that the DPI has given additional reasons for denying the petitioner benefits gives rise, to the mind of this Court, to a fresh cause of action. In this regard it would be useful to refer to the judgement of the Hon'ble Single Bench of the Hon'ble High Court of Guwahati In Re: Rakhal Chandra De & Ors. vs. Dr. Surendranath Sharma & Ors. Paragraph 12 of the judgement may be usefully referred to:- "12. In the instant case, the direction as contained in the order dated 7.4.1999 has been carried out howsoever erroneous that could be. The petitioners have sought to put up their case that the wages paid to them are not commensurating to their entitlement and this court having provided to pay the wages in accordance with law, this court-on interpretation of the said law in this contempt proceeding should pass appropriate orders. I am afraid such a course of action/approach is not permissible in a contempt proceeding. In this proceeding it is only to be judge as to whether there is any willful or deliberate violation of the aforesaid order dated 7.4.1999. The Respondents have well explained the exercise they undertook and completed pursuant to the aforesaid order dated 7.4.1999. I am afraid such a course of action/approach is not permissible in a contempt proceeding. In this proceeding it is only to be judge as to whether there is any willful or deliberate violation of the aforesaid order dated 7.4.1999. The Respondents have well explained the exercise they undertook and completed pursuant to the aforesaid order dated 7.4.1999. There is no willful or deliberate violation on the part of the Respondents against the said order dated 7.4.1999. By keeping the contempt proceeding hanging over the head of the contemners they cannot be forced to act in a particular manner to the likings of the petitioners or as the petitioner may think that they are entitled to some more wages. This Court in the aforesaid order dated 7.4.1999 never issued any direction to grant any time scale of pay to the petitioners. Only direction was to consider their case as per law. The argument made on behalf of the petitioners is that the law should be interpreted in the contempt proceeding as regards the entitlement of the actual wages by the petitioners. For that purpose, the contempt proceeding cannot be converted into a writ proceeding." 14. In the backdrop of the above discussion the instant contempt proceeding cannot survive and, stands accordingly dropped. CPAN 64 of 2018 stands thus dismissed. 15. The dismissal of CPAN 64 of 2018 shall not, however, stand in the way of the Writ Petitioner/Applicant from approaching any other Forum/Court, as advised. 16. Urgent Xerox certified photocopies of this judgement, if applied for, be given to the parties upon compliance of the requisite formalities.