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2019 DIGILAW 758 (CAL)

Avanindra Singh v. Krishnendu Ghoshal

2019-07-30

HIRANMAY BHATTACHARYYA, SAMBUDDHA CHAKRABARTI

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JUDGMENT : Hiranmay Bhattacharyya, J. 1. The short point involved in the instant appeal is whether the court sitting in contempt jurisdiction can grant a relief which was not granted while exercising jurisdiction under Article 226 of the Constitution of India. 2. The alleged contemnors in an application for contempt for alleged violation of an order dated September 22, 2016 passed in WP No. 17609 (W) of 2016 have preferred the instant appeals against the orders dated July 17, 2018 and September 5, 2018 both passed by the learned Single Judge of this Hon'ble Court. 3. The mother of the writ petitioner worked as an Assistant Teacher in Munshirhat Board Primary School (hereinafter referred to as the "the said school"). The petitioner's mother died on December 1, 2010 and as a result, the petitioner was suffering from extreme financial hardship. The writ petitioner applied before the Chairman of District Primary School Council on September 21, 2011 praying for appointment on compassionate ground. The Chairman of the District Primary School Council, Howrah, issued a Memo dated August 5, 2014 requesting the Commissioner of School Education, West Bengal to look into the matter for appointment of the writ petitioner. The Commissioner of School Education did not take any steps with regard to the petitioner's prayer for compassionate appointment since 2014 and as such the petitioner filed a writ petition being WP No. 17609 (W) of 2016. 4. The said writ petition being WP No.17609 (W) of 2016 was disposed of by an order dated September 22, 2016 directing the Commissioner of School Education to pass his final order on the basis of the recommendation made by the Chairman, Howrah District Primary School Council after taking into consideration the relevant circular operating in the field for an appointment on compassionate ground. The learned Single Judge was further pleased to hold that if the Commissioner of School Education finds that the petitioner's case is squarely covered under the relevant circular, he will send the name of the petitioner to the Chairman, District Primary School Council, who, in turn will take steps for appointment of the petitioner in compassionate appointment category. The learned Single Judge was further pleased to hold that if the Commissioner of School Education finds that the petitioner's case is squarely covered under the relevant circular, he will send the name of the petitioner to the Chairman, District Primary School Council, who, in turn will take steps for appointment of the petitioner in compassionate appointment category. His Lordship was further pleased to direct that the Commissioner of School Education would pass a final order within a period of six weeks from the date of communication of the said order and shall communicate a copy of the same to the petitioner at an early date. 5. The writ petitioner filed an application for contempt being CPAN 354 of 2017 alleging wilful and deliberate violation on the part of the alleged contemnors in not complying with the order dated September 22, 2016 passed in the writ petition. 6. In course of hearing of the contempt application, the learned Advocate appearing on behalf of the alleged contemnors filed a compliance report annexing thereto a copy of the order dated 16.7.2017 passed by the Commissioner of School Education, West Bengal in compliance with the solemn order dated September 22, 2016. The Commissioner of School Education observed in the said order that the family consisted of two members namely, the petitioner himself and his father. The income of the family of the deceased teacher at the material point of time was Rs. 11,794/- which is greater than Rs. 10,200/-, i.e. the initial gross salary of a Group-D staff at the material point of time. Therefore, in terms of the relevant circular operating in the field for an appointment on compassionate ground being Notification No. 331-SE (P) dated 26.6.2009, the prayer of the writ petitioner for his appointment on compassionate ground under Died-in-harness category was not maintainable and was thus rejected. 7. The writ petitioner filed an exception to the said compliance report and the alleged contemnors filed a reply to the said exception. 8. 7. The writ petitioner filed an exception to the said compliance report and the alleged contemnors filed a reply to the said exception. 8. The matter again came up for hearing on July 7, 2018 before the learned Single Judge when His Lordship upon hearing the learned Advocates for the respective parties was pleased to direct the alleged contemnors to take all necessary steps to re-calculate the income of the petitioner and to place the same before the court in terms of the observations contained in the order after taking into consideration the circulars mentioned in the said order. It was further observed by His Lordship in the said order that the calculation made under the office memorandum annexed to the compliance report was not keeping with the circular dated 26th July, 2009 and 8th July, 2009. The learned Judge was further pleased to observe that the same cannot be made operative any more. 9. The contempt application again appeared before the learned Single Judge on September 5, 2018 when His Lordship upon hearing the learned Advocates for the respective parties was pleased to pass an order directing the alleged contemnor or any persons competent to do so in his place to issue a fresh order placing the petitioner's name in the panel maintained by the Government for compassionate appointment for the post he deserves. The Learned Judge was further pleased to direct that such compliance was to be made on or before February 22, 2018 and to communicate the same to the petitioner immediately thereafter. For the purpose of securing compliance, the contempt application was not disposed of and liberty was given to mention for enlistment of the same. 10. The alleged contemnors have preferred two appeals being MAT No. 885 of 2018 challenging the order dated July 17, 2018 and another being MAT No. 1320 of 2018 challenging the order dated September 5, 2018, both passed in CPAN 354 of 2017 arising out of WP No. 17609 (W) of 2016. 11. Both the aforesaid appeals have been heard analogously. Mr. Jaytosh Majumdar, Learned Government Pleader appearing for the appellants submits that the learned Single Judge by an order dated September 22, 2016 directed the Commissioner of School Education to pass a final order within the stipulated time limit. 11. Both the aforesaid appeals have been heard analogously. Mr. Jaytosh Majumdar, Learned Government Pleader appearing for the appellants submits that the learned Single Judge by an order dated September 22, 2016 directed the Commissioner of School Education to pass a final order within the stipulated time limit. The Commissioner of School Education passed an order dated July 16, 2017 in compliance with the order dated September 22, 2016 passed by the learned Single Judge. In the event the writ petitioners/respondents herein had any grievance against the said order dated July 16, 2017 passed by the Commissioner of School Education, it was open for the writ petitioners/respondents herein to seek their legal remedies against the said order in accordance with law and the contempt petition was not maintainable in the instant case. 12. He further submits that the learned Single Judge in the order dated September 22, 2016 did not pass any specific direction upon the Commissioner of School Education to place the petitioner's name in the panel maintained by the Government for compassionate appointment for the post he deserves. But by the order impugned herein dated September 5, 2018, which has been passed on a contempt petition, the Learned Single Judge passed an order directing the competent authority to issue a fresh order for placing the petitioners name in the panel maintained by the Government for compassionate appointment for the post he deserves. He concluded by submitting that in exercise of contempt jurisdiction the High Court could not have granted a relief which was beyond the relief granted in the writ petition. 13. In support of his aforesaid submissions Mr. Majumdar relies on the following judgments: - J.S. Parihar vs. Ganpat Duggar and others reported at (1996) 6 SCC 291 , - State of Uttar Pradesh vs. A.K. Earth Movers and others reported at (2017) 13 SCC 339 and - Director General, Youth Services and Sports Department and Others vs. Sanjay Gupta and Ors. reported at (2017) 4 SCC 571 Mr. Arabinda Chatterjee, learned Senior Advocate appearing on behalf of the writ petitioners/respondents herein submitted that the order dated July 16, 2017 passed by the Commissioner of School Education is in violation of the circulars which are operating in the field. 14. He further submits that the said order is in violation of the West Bengal Primary School Teachers Recruitment Rules, 2001 and the subsequent amendments therein. 14. He further submits that the said order is in violation of the West Bengal Primary School Teachers Recruitment Rules, 2001 and the subsequent amendments therein. He also submits that the learned Single Judge in the order dated September 22, 2016 has arrived at a finding that the income of the petitioner did not exceed the salary of a Group-D employee. In view of such specific finding of the learned Single Judge, it was not open to the Commissioner of School Education to sit in appeal over the order passed by this court and arrive at a conclusion in his reasoned order dated July 16, 2017 that the income of the family of the deceased teacher at the material point of time was greater than the initial gross salary of a Group-D staff and therefore, in terms of the relevant circular being notification No. 331-AC(P) dated 26.6.2009 the prayer of the petitioner for his appointment on compassionate ground under the Died-in-harness category was not maintainable and the same was, therefore, rejected. He thus, submits that the Commissioner of School Education is guilty of contempt for willful and deliberate violation of the solemn order dated 22nd September, 2016, by passing the order dated July 16, 2017 as the observation contained in the order dated July 16, 2017 was against the positive finding of the learned Single Judge that the income of the petitioner does not exceed the salary of the Group-D employee. In support of his submission Mr. Chatterjee relies on the following judgments: - Hindusthan Lever Sramik Karmachari Congress Vs. Ashish Chakraborty and others, reported at 1991 (1) CLJ 502, - Dr. Subhas Chandra Pratihar vs. Leena Chakraborty & Ors. Reported at 1994 (2) CLJ 513 , - Delhi Development Authority vs. Skipper Construction Company Private Ltd and Ors. Reported at (1996) 4 SCC 622 and - Midnapore Peoples' Cooperative Bank Ltd. And Ors. Vs. Chunilal nanda and Ors. Reported at AIR 2006 SC 2190 We have heard the submissions advanced by the learned Advocates for the respective parties and have considered the materials available on record. Reported at (1996) 4 SCC 622 and - Midnapore Peoples' Cooperative Bank Ltd. And Ors. Vs. Chunilal nanda and Ors. Reported at AIR 2006 SC 2190 We have heard the submissions advanced by the learned Advocates for the respective parties and have considered the materials available on record. Upon reading the order dated September 22, 2016 as a whole it appears that though the learned Single Judge in the order dated September 22, 2016 arrived at a prima facie view that the income of the petitioner did not exceed the salary of Group-D employee, the learned Single Judge did not finally decide the issue relating to petitioner's entitlement to be appointed under the Died-in-harness category and kept it open to be decided by the Commissioner of School Education being the respondent No. 2 in the writ petition. As such there was no fetter on the said authority to arrive at his own finding with regard to the income of the family of the petitioner. Since the entire issue was left open to be decided by the said authority, the learned Single Judge thought it fit not pass any specific direction in the order dated 22nd September, 2016 for placing the petitioner's name in the panel maintained by the Government for compassionate appointment for the post he deserves. 15. A three-Judge Bench of the Hon'ble Supreme Court of India in the case of J.S. Parihar (supra) held that once an order is 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 and the order passed 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 seek judicial review and the same cannot be considered to be a willful violation of the order. The Hon'ble Supreme Court in paragraph 6 of the said judgment held as follows: "6. 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. The Hon'ble Supreme Court in paragraph 6 of the said judgment held as follows: "6. 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 wilful violation of the order. After re-exercising 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." 16. In Director General, Youth Services and Sports Department and Others (supra) the Hon'ble Supreme Court has held that in exercise of contempt jurisdiction, the High Court could not have granted a relief which was beyond the relief granted in the writ proceedings. In paragraph 4 of the said judgement the Supreme Court held as follows: "4. Reading the orders of the High Court dated 23-4-2001 and 17-5-2012 [J&K SSRB v. Neelam Gupta, 2012 SCC Online J&K 120], we do not find any specific direction issued by the High Court for appointment of the respondent-contempt petitioners with retrospective effect from the year 1997. The directions issued were for due consideration of the cases of the respondent-contempt petitioners against the available vacancies. After the order of the Division Bench was passed confirming the order of the learned Single Judge the cases of the respondent-contempt petitioners were duly considered and they were appointed in the year 2015. In the absence of any specific direction for giving retrospective effect to the said appointments, we do not see how the respondent-contempt petitioners can lay a claim for being appointed with retrospective effect. That apart, we also fail to see how in the exercise of contempt jurisdiction the High Court could have granted a relief which was beyond the reliefs granted in the writ proceedings. We, therefore, cannot uphold the view taken by the High Court in the impugned order." 17. In State of Uttar Pradesh (supra), the Hon'ble Supreme Court held that when in terms of an order passed by the Court to consider the representation of the writ petitioner, the concerned authority passes an order, and the writ petitioner is aggrieved by such an order, then it is open for him to seek legal remedies in accordance with law and a contempt petition is not maintainable alleging violation. The Hon'ble Supreme Court in paragraph 6 of the said judgment held as follows: "6. The said representation was duly considered and orders thereon were passed by the authority concerned on 15-3-2013. If the respondent-writ petitioners had any grievance against the said order dated 15-3-2013, it was open for them to seek their legal remedies against the same in accordance with law. We do not see how the contempt petition could have been maintained in the facts noted above. In any case, we do not see how the High Court could have considered it proper to propose an adjudication of the entitlement of the respondent-writ petitioners for payment in a contempt proceeding as has been done by the impugned order." 18. Thus, the judgments rendered by the Hon'ble Supreme Court of India in the case of J.S. Parihar (Supra), Director General, Youth Services and Sports Department and Others (supra), State of Uttar Pradesh (supra) squarely apply to the facts of the instant case. 19. In Hindusthan Lever Sramik Karmachari Congress (Supra) an order was passed in the original writ petition directing the learned Additional District Judge to appoint the Special Officers to conduct the election of the Executive Committee of the Union within a specified time Limit. The manner in which such election is to be held was specified in the said order. A contempt application was filed for violation of the said order. In the contempt application an order was passed directing the Additional District Judge to make all arrangements for holding the Executive Committee of Hindusthan Lever Sramik Karmachari Congress within the time limit as specified in the said order. Thus, the original order passed in the writ petition was directed to be complied with in the order passed on the contempt application. It is not a case where on a contempt application a relief was granted which was not granted in favour of the petitioner in the original writ petition. Thus, the facts of Hindusthan Lever Sramik Karmachari Congress (Supra) cannot be applied to the facts of the instant case. 20. It is not a case where on a contempt application a relief was granted which was not granted in favour of the petitioner in the original writ petition. Thus, the facts of Hindusthan Lever Sramik Karmachari Congress (Supra) cannot be applied to the facts of the instant case. 20. In Delhi Development Authority (Supra), it has been held that the Hon'ble Supreme Court while exercising powers under Article 142 of the Constitution was to do complete justice between the parties and for that purpose, it is necessary to ensure that the person who has defrauded a large number of persons in open and brazen violation of the clear and specific orders of the Supreme Court should not be allowed to benefit from his fraud and/or contemptuous Act. The said Judgment deals with the powers of the Supreme Court under Article 142 of the Constitution of India and as such the same cannot be made applicable to the facts of the instant case. 21. In Dr. Subhas Chandra Pratihar (Supra), the writ petitioner claiming himself to be qualified for appointment as a lecturer filed a writ petition for non-consideration of his case for appointment as lecturer and subsequent promotion as a professor. The writ petition was allowed by directing the respondents to determine the appointment of the petitioner as a lecturer after taking into consideration the case of similarly circumstanced persons. The contempt application was filed for violation of the orders passed in writ petition by refusing to issue necessary orders determining the appointment of the petitioner as lecturer. On the contempt application, this Court directed the contemnors to comply with the orders passed on the writ petition. The judgment in the case of Dr. Subhas Chandra Pratihar (Supra), has been delivered by a Single Bench of this court. The view taken therein is contrary to the law declared by the Hon'ble Supreme Court of India in the case of J.S.Parihar (Supra), State of Uttar Pradesh (supra) and Director General, Youth Services and Sports Department and Others (supra) and as such the said decision rendered in Dr. Subhas Chandra Pratihar (Supra), cannot be said to be a binding precedent. 22. Subhas Chandra Pratihar (Supra), cannot be said to be a binding precedent. 22. In Midnapore Peoples' Co-operative Bank Limited (Supra) Hon'ble Supreme Court of India held that the High Court ought to have proceeded to consider whether there was any willful disobedience of the order passed in the original writ petition and if so, punish him for contempt. There was no justification for the learned Single Judge in the contempt proceedings to pass further direction. Paragraph 21 of the said Judgment runs thus: "21. There was also no justification for the further direction by the learned Single Judge in the contempt proceedings, that too by an interlocutory order, that the complainant should immediately and forthwith be reinstated into the service of the Bank, and shall be deemed to be in the service of the Bank all through, that the employee shall not be prevented in any manner from discharging his duties and that he shall be paid all arrears of salary within four weeks, and that the suspension order shall be deemed to have been revoked. These were totally outside the scope of the proceedings for contempt and amounted to adjudication of rights and liabilities not in issue in the contempt proceedings. At all events, on the facts and circumstances, there was no disobedience, breach or neglect on the part of the Bank and its President and Secretary, to provoke the Court to issue such directions, even assuming that such directions could be issued in the course of the contempt proceedings. Hence, Directions 2 and 3 and the direction relating to revocation of suspension are liable to be set aside." 23. The judgment in the case of Midnapore Peoples' Co-operative Bank Limited (Supra) however, does not lend any support to the argument advanced by Mr. Chatterjee. On the other hand, it supports the argument of Mr. Joyotosh Majumdar that passing further direction is totally beyond the scope of the proceedings in contempt and it amounted to adjudication of rights and liabilities not in issue in the contempt proceedings. 24. Chatterjee. On the other hand, it supports the argument of Mr. Joyotosh Majumdar that passing further direction is totally beyond the scope of the proceedings in contempt and it amounted to adjudication of rights and liabilities not in issue in the contempt proceedings. 24. It is now well settled that when the High Court passes a direction upon an authority to consider the representation of the writ petitioner and the said authority passes an order upon consideration of the said representation, the order passed by the authority may be a subject matter of judicial review by the High Court but the same cannot be considered to be the willful violation of the order passed by the learned Judge. In the instant case, the learned Single Judge passed a direction upon the Commissioner of the School Education to pass his final order on the basis of the recommendation made by the Chairman Howrah District Primary School Council, by taking into consideration the relevant circular operating in the field for appointment of compassionate ground. Since the Commissioner of the School Education has taken a decision by passing a reasoned order dated 16.7.2017, the action on the part of the said authority in passing such order cannot be considered to be willful violation of the order dated 22.9.2016 passed by the learned Single Judge. If the petitioner's case is that the order dated 16.7.2017 passed by the Commissioner of School Education is in violation of the relevant Rules and the circulars issued from time to time, the same would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review and the contempt proceedings is not maintainable in the instant case. 25. Sitting in contempt jurisdiction, the court cannot go into the merits of the decision of the authority. As the learned Single Judge did not pass any positive order while disposing of the writ petition by placing the petitioner's name in the panel maintained by the Government for compassionate appointment for the post he deserved, the said relief could not have been granted in exercise of contempt jurisdiction by the High Court. As the learned Single Judge did not pass any positive order while disposing of the writ petition by placing the petitioner's name in the panel maintained by the Government for compassionate appointment for the post he deserved, the said relief could not have been granted in exercise of contempt jurisdiction by the High Court. Since pursuant to the direction passed by the Learned Single Judge, an order was passed by the Commissioner of School Education on 16.7.2017, no contempt application is maintainable on the ground that the said order had been passed contrary to the Rules and/or the circular which are operative in the field. As such the learned Single Judge was not justified in directing the alleged contemnors to take necessary steps to recalculate the income of the petitioner in terms of the observations contained in the order dated 17.7.2018 and taking into consideration the circular mentioned in the said order. The learned Single Judge was also not justified in directing the competent authority to place the petitioners name in the panel, as directed by the order dated 5th September, 2018. Thus, the impugned orders dated 17.7.2018 and 5th September, 2018 suffers from illegality and infirmity and as such the same are set aside. 26. The appeals are thus allowed without, however, any order as to costs. The connected applications are also disposed of accordingly. 27. Photostat certified copy of this order, if applied for, be supplied to the applicant expeditiously, subject to compliance of all the required formalities. I agree. : Dr. Sambuddha Chakrabarti, J.