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2019 DIGILAW 416 (CAL)

Tapas Kumar Mandal v. Sekhar Basu

2019-03-29

SHIVAKANT PRASAD, TAPABRATA CHAKRABORTY

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JUDGMENT : Tapabrata Chakraborty, J. The present contempt application has been preferred alleging violation of a judgment and order dated 29th June, 2017 in M.A.T 8 of 2017. In connection with the contempt application, the petitioner has filed four applications being C.A.N 1890 of 2018, C.A.N 4302 of 2018, C.A.N 6100 of 2018 and C.A.N 9265 of 2018 on 8th March, 2018, 2nd July, 2018, 16th August, 2018 and 28th November, 2018 respectively. 2. Dr. Tapas Kumar Mandal, the petitioner appearing in person, submits that in spite of full knowledge of the judgment dated 29th June, 2017, the alleged contemnors have not taken any step towards payment of arrear benefits to the petitioner consequent upon effect of promotion from Associate Professor 'E' grade to Professor 'F' grade, awarded by the Departmental Promotion Committee (in short, DPC) from 1st February, 2009 to 30th June, 2010, the date of his superannuation and fixation of basic pension considering the new basic pay. The promotional benefits and consequential retirement benefits have also been withheld. The contemnors deliberately and wilfully did not convene a meeting of the Governing Council of Saha Institute of Nuclear Physics (in short, SINP) following the bye-laws and did not take any step towards grant of promotion to the petitioner causing huge financial loss. Such lackadaisical attitude on part of the contemnors warrants imposition of exemplary punishment. 3. He further submits that the Governing Council only approves/vets the recommendation of the DPC. About nine months after the delivery of the judgment, the Governing Council meeting was held on 2nd February, 2018. The petitioner could have been easily promoted to the next grade professor "G" before his retirement on 30th June, 2010. As the disciplinary proceeding has been quashed, he is also entitled to the Performance Related Incentive (PRIS) from 2007. The Registrar of SINP did not take any initiative to release the aforesaid PRIS and thereby harassed the petitioner. The authorities of SINP have acted in an arbitrary and illegal manner. In support of such contention, the petitioner has filed the application being C.A.N 1890 of 2018 inter alia praying for penalising the contemnors by withholding their monthly salaries till the implementation of the judgment. 4. Dr. Mandal argues that the decision taken by the Governing Council to forward the recommendation of the DPC to its Academic Sub-Committee (in short, ASC) is violative of the Promotion Rules of SINP. 4. Dr. Mandal argues that the decision taken by the Governing Council to forward the recommendation of the DPC to its Academic Sub-Committee (in short, ASC) is violative of the Promotion Rules of SINP. It would be evident from Section 9 of the so called Promotion Rule that promotion of employees under Scientific/Technical category, who are in Grade 'F' and above will be considered by the ASC of the Governing Council. In reply to an application submitted under Section 6 of the Right to Information Act, 2005, the CPIO could not supply any documents pertaining to the provision of sending the recommendations of the DPC to ASC of the Governing Council. The pleadings in support of such contention have been brought on record by an application being C.A.N 4302 of 2018 again praying for issuance of necessary direction to penalize the contemnors by withholding their monthly salaries. 5. Drawing the attention of this Court to a further application filed on 16th August, 2018 being C.A.N 6100 of 2018, Dr. Mandal submits that the contemnors have deliberately denied to implement the judgment of the Court and have withheld the admissible service benefits in the form of service promotion. In view of such deliberate denial on the part of the contemnors to comply with the judgment of this Court dated 29th June, 2017, direction needs to be issued upon the contemnors for payment of litigation costs of Rs.80,000/-. 6. Dr. Mandal argues that the contemnors have made false statements and furnished misleading information for which cost to the tune of Rs.10 lakhs needs to be imposed upon each of the contemnors. Such prayer has been made by filing the application C.A.N 9265 of 2018. 7. Placing reliance upon the affidavits-in-opposition filed by the contemnors, Mr. Om Narayan Rai, the learned advocate appearing for the alleged contemnors submits that in compliance with the judgment dated June 29, 2017 passed by this Hon'ble Court, the respondents have already paid a sum of Rs.1,19,940/- to the petitioner on account of arrears. The petitioner is also receiving his pension continuously and uninterruptedly as on date. In further compliance with the said judgment, the 117th meeting of the Governing Council of SINP was held on 3rd February, 2018. The petitioner is also receiving his pension continuously and uninterruptedly as on date. In further compliance with the said judgment, the 117th meeting of the Governing Council of SINP was held on 3rd February, 2018. The issue with regard to the petitioner's promotion was considered in the said meeting as mandated by the solemn judgment dated 29th June, 2017 and the same was referred to an ASC of the Governing Council for its consideration and comments. The ASC is a body carved out of the Governing Council of SINP which comprises of only the academic members of the Governing Council which is a larger body consisting of academic members as well as non-academic members. The ASC duly considered the petitioner's candidature and competence for promotion and thereafter prepared a report in that regard which was ultimately placed before the Governing Council in the meeting that was held on August 3, 2018. Such report has been duly considered by the Governing Council and has been accepted. 8. He contends that the Governing Council comprises of heads of institutes, scientists at various places in the country and it is not always possible for the Governing Council to meet strictly in accordance with the schedule prescribed in the bye-laws. The meeting of the Governing Council is held at such frequent intervals as the situation permits. In the instant case there has been no intentional delay on the part of the authorities to convene the Governing Council meeting. The alleged contemnors have not committed any act which is contumacious or contemptuous. They have the highest regard for this Hon'ble Court and if there has been any act of commission or omission on their part that may technically amount to violation of the judgment passed by this Hon'ble Court, the contemnors tender their unconditional apology therefor. 9. The minutes of the 118th SINP Governing Council Meeting, communicated by a memo dated 18th September, 2018, has been placed before this Court. Let the same be kept on record. 10. 9. The minutes of the 118th SINP Governing Council Meeting, communicated by a memo dated 18th September, 2018, has been placed before this Court. Let the same be kept on record. 10. The operative part of the judgment dated 29th June, 2017 runs as follows: "For the reasons discussed above, we modify the impugned order expunging the observations of the learned Single Judge to the effect that the said bye-laws are not approved and are not enforceable and dispose of the appeal directing the said Institute to drop the disciplinary proceeding, which had been initiated against the petitioner through the charge sheet dated 30th August, 2005 and to grant the admissible service benefits which have been denied to the petitioner pursuant to the said order of punishment dated 16th June, 2011 within a period of four weeks. In the event the Governing Council grants promotion to the writ petitioner, all arrears of salary arising therefrom shall be paid within 4 weeks from the decision of the Governing Council". 11. A perusal of the same would reveal that the authorities of SINP were directed to drop the disciplinary proceeding which was initiated against the petitioner through a charge-sheet dated 30th August, 2005 and to grant the admissible service benefits which have been denied to the petitioner pursuant to the order of punishment dated 16th June, 2011. The petitioner himself has averred in paragraph 6 of the contempt application that such direction has been complied with. 12. A perusal of the said judgment reveals that there was no categoric direction upon the authorities of SINP to grant promotion to the petitioner. Records reveal that the promotion proposal of the petitioner was considered by the ASC and it was inter alia observed that "the selection committee in 2008 recommended for promotion probably for the fact that the candidate had completed 10 years in the present grade since his last promotion (indicated by tick mark in the recommendation form). Since promotion at SINP is merit based, not time bound, the ASC did not find enough scientific progress that merits promotion for Prof. Mandal from the Grade 'E' to Grade 'F' (next higher grade). ASC concluded that his academic and scientific contributions since his last promotion in 1999 are not significant to be considered for promotion to the level of Grade 'F'. Due to poor academic performances, PRIS is also not recommended". Mandal from the Grade 'E' to Grade 'F' (next higher grade). ASC concluded that his academic and scientific contributions since his last promotion in 1999 are not significant to be considered for promotion to the level of Grade 'F'. Due to poor academic performances, PRIS is also not recommended". The Governing Council accepted the ASC recommendation in respect of the petitioner. Such decision taken gives rise to a fresh cause of action and such action of the authorities cannot be construed to be violative of directions contained in the judgment dated 29th June, 2017. The delay in convening the meeting of the Governing Council does not appear to be deliberate. Such delay has been explained and apology has been tendered on behalf of the contemnors. 13. High authorities speak of diffidence and temperance in the invocation of contempt jurisdiction and the sparing use of the punitive measures. The non-compliance of an order has to be wilful and deliberate and not mere accidental or unintentional. It is well-settled that once an order is passed by a party to a proceeding on the basis of the direction issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The Court in exercise of contempt jurisdiction cannot test the correctness of the order passed or to give any additional direction or to delete any direction. 14. For the reasons discussed, the contempt application and all the connected applications are dismissed. 15. Needless to observe, the dismissal of the contempt application shall not prevent the petitioner from challenging the order passed by the authorities denying him promotion before the appropriate forum. 16. There shall, however, be not order as to costs. 17. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.