Research › Search › Judgment

Calcutta High Court · body

2019 DIGILAW 864 (CAL)

Jugal Kishore Mishra v. B. P. Singh

2019-09-13

TAPABRATA CHAKRABORTY

body2019
JUDGMENT : 1. The present contempt application has been preferred alleging violation of a judgment and order dated 15th July, 1988 passed in Civil Rule No.3190 (W) of 1984. 2. The operative part of the order dated 15th July, 1988 runs as follows: "The petitioner completed the whole combined course of Departmental Examination covering a period of 36 weeks at a place known as "Neemuch". He was directly recruited Head Constable and he was designated as an 'under officer'. The petitioner could not have been promoted because of the various reasons to which I have already referred. The only contention in this application is whether the petitioner shall be required to appear at the further test for being considered for promotion to the post of Sub-Inspector. I have given anxious consideration to the reason. The contention in my view and having regard to the facts that the petitioner is a direct recruited constable and designated as Under Officer and having completed the departmental examination successfully the SOS/UOS Course he would have been eligible for his promotion had he not been dismissed from service. The Court of Appeal on 17.1.80 directed the department for reinstatement of the petitioner and he was entitled to all benefits which has been denied to him from 1972. The contempt application was also made and orders were passed which I have already referred to. Having regard to the facts and circumstances of this case the Rule is allowed to the extent indicated above. The petitioner shall be considered for promotion to the post of Sub-Inspector. The petitioner shall be promoted notionally to the post of Inspector with retrospective effect when according to the seniority and on the basis of the qualification he was due for promotion considering that he was not dismissed from service from 1972 till 1980. He will be promoted to the post of Inspector according to seniority. His promotion will be dated back but no monetary benefit will be given to the petitioner. On the basis of notional promotion in the post of Sub- Inspector his seniority shall be determined and he shall be considered to the post of Inspector. His seniority in the post of Inspector shall be determined from the date he should be deemed to have been notionally promoted." 3. On the basis of notional promotion in the post of Sub- Inspector his seniority shall be determined and he shall be considered to the post of Inspector. His seniority in the post of Inspector shall be determined from the date he should be deemed to have been notionally promoted." 3. The petitioner, appearing in person, submits that he was appointed to the post of Head Constable in Central Reserve Police Force (in short, CRPF) on 20th August, 1969. He was illegally dismissed from his service on 25th May, 1972. The said order was challenged and on the basis of orders passed in a writ petition and thereafter in an appeal, he was reinstated. Subsequent thereto, he submitted an application for promotion but as the same was not considered, he preferred the writ petition being Civil Rule No. 3190 (W) of 1984. The same was disposed of by an order dated 15th July, 1988. Challenging the said order an appeal was preferred by the respondents being F.M.A. 52 of 1994 and the same was dismissed on 17th March, 1998. In the midst thereof, an order of premature retirement was passed against him on 31st August, 1996. Challenging the said order he preferred a Writ Petition (Civil) No. 527/97 before the Hon'ble Supreme Court which was dismissed by an order dated 3rd November, 1997 with liberty to move the High Court. On the basis of such direction he filed a fresh writ petition being WP 915 (W) of 1999 inter alia praying for implementation of the order dated 15th July, 1988. The said writ petition was disposed of by an order dated 31st July, 2001 directing the respondents to calculate the post retiral benefits of the petitioner strictly in conformity with the judgment and order dated 15th July, 1988. In the midst thereof, he preferred the present contempt application on 17th March, 1999. In the same an order was passed on 25th June, 2012 observing inter alia that the alleged contemnors shall honour their own office order dated 7th August, 1989 and carry out the same. On 17th May, 2013 an application being CAN 5379 of 2013 was filed on behalf of CRPF praying for an enquiry alleging inter alia that the memo dated 7th August, 1989 produced by the petitioner did not bear the signature of the issuing authority and its veracity was doubtful. On 17th May, 2013 an application being CAN 5379 of 2013 was filed on behalf of CRPF praying for an enquiry alleging inter alia that the memo dated 7th August, 1989 produced by the petitioner did not bear the signature of the issuing authority and its veracity was doubtful. However, on 19th January, 2015 the contempt application was dismissed as none appeared on his behalf. Assailing the said order he preferred a Special Leave Petition and the same was allowed by an order dated 26th September, 2016 setting aside the order dated 19th January, 2015 and remitting the matter to this Court. Subsequent thereto, he preferred an application being CAN 10908 of 2012 for bringing on record the new incumbents who have joined the concerned posts. 4. He submits that due to the illegalities perpetrated by the CRPF authorities he was constrained to approach this Court and the Hon'ble Supreme Court on repeated occasions since the year 1972. The order dated 15th July, 1988 attained finality upon dismissal of the appeal preferred against the same and as such the contemnors are bound to comply with the same. 5. He contends that in spite of full knowledge of the order dated 15th July, 1988, the alleged contemnors have refused to grant him promotion. Placing reliance upon a letter dated 7th August, 1989 issued by the 27th Bn.CRPF, Agartala, Tripura, he submits that he is senior to M.D. Sukla and S.P. Tripathi and that as such, he is entitled to promotion to the post of Sub- Inspector and to the post of Inspector on and from 20th August, 1973 and 20th August, 1978 respectively and further promotion upto the rank of 2nd in Command with benefits of pay accrued by fixation of pay in the promoted posts up to his attainment of age of superannuation. On the basis of consequential fixation the petitioner becomes entitled to an amount of Rs.71,00,000/-. 6. Mr. Chanda, Learned Additional Solicitor General appearing for the alleged contemnors contends that the Court, exercising contempt jurisdiction, is primarily concerned with the question of contumacious conduct of the party. The non- compliance of an order has to be wilful and deliberate and not merely accidental and unintentional. In compliance of the order dated 15th July, 1988, the Deputy Inspector General of Police passed an order on 7th October, 2001. The non- compliance of an order has to be wilful and deliberate and not merely accidental and unintentional. In compliance of the order dated 15th July, 1988, the Deputy Inspector General of Police passed an order on 7th October, 2001. Once an order has been 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 and such action does not constitute contempt. 7. For and on behalf of the alleged contemnors, Mr. Chanda tenders unqualified apology for any unintentional violation of the order on their part and prays for acceptance of such apology. 8. From a composite reading of the order dated 15th July, 1988 passed in Civil Rule No.3190 (W) of 1984 it appears that the Court arrived at a finding that the petitioner would have been eligible for his promotion had he not been dismissed from his service and accordingly the Court directed that the petitioner shall be considered for such promotion notionally according to seniority treating him to be in service from 1972 till 1980. There is, however, no direction in the order dated 15th July, 1988 towards grant of promotion up to the rank of 2nd in Command with benefits of pay accrued by fixation of pay in the promoted post up to the petitioner's attainment of age of 60 years. 9. The writ petition being WP 915 (W) of 1999 was disposed of on 31st July, 2001 directing the respondents to calculate the retiral benefits of the petitioner strictly inconformity with the order dated 15th July, 1988. Records reveal that thereafter an application being CAN No.3357 of 2002 was filed by the petitioner inter alia praying for modification of the final order dated 31st July, 2001 passed in WP 915 (W) of 1999 and for quashing the premature retirement order dated 31st August, 1996 and for a direction upon the respondents to pay all arrears of salary etc. by fixing his rank or post w.e.f. 15th July, 1988 to April, 2002. The said application preferred by the petitioner was dismissed by an order dated 21st May, 2002 categorically recording that "the writ petitioner has been extended all retiral benefits which are available to him in terms of my judgment and order dated 31stJuly, 2001". by fixing his rank or post w.e.f. 15th July, 1988 to April, 2002. The said application preferred by the petitioner was dismissed by an order dated 21st May, 2002 categorically recording that "the writ petitioner has been extended all retiral benefits which are available to him in terms of my judgment and order dated 31stJuly, 2001". Aggrieved by the said order the petitioner preferred an appeal being MAT 2236 of 2002. The said appeal was also dismissed by an order dated 8th December, 2004. Thus the observation in the order dated 21st May, 2002 that the writ petitioner has been extended all retiral benefits which were available to him in terms of the judgment and order dated 31st July, 2001, attained finality. 10. However, from the documents, as produced on behalf of the alleged contemnors in course of hearing, it appeared that one M.D. Shukla and one S.P. Tripathy were both appointed in the post of Head Constable on and from 16th May, 1970 and were thereafter promoted to the post of Inspector on and from 17th January, 1986 and 16th April, 1988 respectively whereas the petitioner, though appointed to the post Head Constable prior to them on 20th August, 1969, was given notional promotion to the post of Inspector with effect from 1st April, 1988. In view thereof, the learned Additional Solicitor General was directed to avail instruction as regards grant of notional benefits of promotion to the post of Inspector to the petitioner with effect from 17th January, 1986. Thereafter a supplementary affidavit was affirmed on behalf of the alleged contemnors on 8th August, 2019. 11. Paragraph 3 of the supplementary affidavit runs as follows: "This deponent states that the petitioner retired from service on 1st September, 1996. The pay fixation on the promoted rank was given effect to in compliance of the order dated 7th October, 2001 passed in W.P. No.915 (W) of 1999. A copy of the said order is appearing at page 310 of the Paper Book. At the time of fixation of the pay scale, the same was done on the basis of the records and documents available with the department. A copy of the said order is appearing at page 310 of the Paper Book. At the time of fixation of the pay scale, the same was done on the basis of the records and documents available with the department. Thereafter in course of hearing of the instant application for contempt, the matter was discussed by the officials of the Department on numerous occasions and on the basis of the records available it was found that the benefit to the petitioner was to be awarded with effect from 17.01.1986 in place and stead of 01.04.1988. The said record wherefrom it is evident that the petitioner is entitled to receive the benefit on and from 17.01.1986 has come to the knowledge of the Official of the Department only recently and on the basis whereof, the deponent states that the petitioner is entitled to such benefit from the said date." 12. In view thereof, the application being CAN 5379 of 2013 filed on behalf of CRPF praying for an enquiry alleging inter alia that the memo dated 7th August, 1989 produced by the petitioner, did not bear the signature of the issuing authority and its veracity was doubtful, is dismissed. 13. For such promotion on notional basis with effect from 17th January, 1986, the petitioner becomes entitled to an arrear amount of Rs.1,63,837/- for the period from the month of September, 1996 till the month of February, 2019 and his pension also stands enhanced by Rs.1344/-. Such calculation sheet of pension/arrear pension prepared by the respondents has been annexed to the opposition to the supplementary affidavit. Let the supplementary affidavit and the opposition to the same as filed be kept on record. 14. High authorities speak of diffidence and temperance in the invocation of contempt jurisdiction and the sparing use of the punitive measures. Whether disobedience is wilful depends upon the facts of the case. The observation of the Court in the order dated 21st May, 2002 that the writ petitioner has been extended all retiral benefits which are available to him in terms of the judgment dated 31st July, 2001 attained finality upon dismissal of the appeal preferred against the same, however, having deciphered an error in calculation, an affidavit has been affirmed stating that the petitioner would be granted notional benefits of promotion to the post of Inspector with effect from 17th January, 1986. Error in such calculation is neither deliberate nor wilful. No motive or intent is writ large on such omission and the apology tendered is bonafide. 15. Accordingly, this Court directs the respondents to disburse the arrear amount of Rs.1,63,837/-, as calculated for the period from the month of September, 1996 till February, 2019 together with the arrear amount which has accumulated thereafter till the month of September, 2019 in favour of the petitioner within a period of six weeks from the date of communication of this order and to disburse the enhanced pension on and from the month of October, 2019. 16. The contempt application and the connected application being CAN 10908 of 2012 are, accordingly, disposed of and Rule stands discharged. 17. There shall, however, be no order as to costs. 18. 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.