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2020 DIGILAW 194 (UTT)

BALDEV KUMAR AGARWAL v. N. K. DAS

2020-03-12

SHARAD KUMAR SHARMA

body2020
JUDGMENT Hon'ble Sharad Kumar Sharma, J. The Division Bench of this Court, vide its judgment dated 17.10.2011, as rendered in WPSB No. 99 of 2007, Baldev Kumar Agarwal Vs. UCO Bank, had passed the following orders:- “20. ………….we direct the disciplinary authority to pass an appropriate order with regard to payment of balance allowances, namely, the allowances during the suspension period, if payable, if any, as well as pass appropriate orders for payment of pensionery benefits and other dues which is permissible and payable under law as per the Rules and Regulations of the bank from the date of compulsory retirement. 21. Writ petition is dismissed with the aforesaid observations." 2. As a consequence thereto, the impugned order which was challenged in the writ petition, which was an order of compulsory retirement, was passed. This impugned order of compulsory retirement, in fact, it was an order, which was passed after setting aside the earlier punishment order of dismissal dated 22.09.1994. Meaning thereby, the order of compulsory retirement was upheld by the Court, but certain riders were attached to it by the Division Bench in its para 20, which is already quoted above. 3. The Division Bench held that :- (a) The dismissal order has been substituted to an order of compulsory retirement. (b) The petitioner has not received the pensionary benefits. (c) The direction was given to the disciplinary authority to pass an appropriate order with regards to the payment of balance allowances, allowances during the suspension period, if payable, if any, as well as pass an appropriate order for payment of pensionary benefits and other dues which is permissible and payable under law. 4. The petitioner had filed the contempt petition on 05.12.2012, annexing therewith the copy of the order passed by the Assistant General Manager (Disciplinary Authority) being an order dated 27.03.2012, wherein the Disciplinary Authority has passed the following order:- “The suspension period of Shri B.K. Agarwal will be treated as not on duty and he will not be eligible for any monetary/non-monetary benefits including increments during the period of suspension excepting the subsistence allowance as per rules. All pensionary benefits and other dues which are permissible and payable under law, as per the rules and regulations of the Bank from the date of compulsory retirement, will be paid. All pensionary benefits and other dues which are permissible and payable under law, as per the rules and regulations of the Bank from the date of compulsory retirement, will be paid. In other words, the superannuation benefits viz Bank's contribution to Provident Fund and Gratuity, as would be due otherwise to Shri Agarwal shall be considered by the Competent Authority under the respective Rules or Regulations prevailing at the relevant time." 5. In fact, the Disciplinary Authority have taken a decision thereof, that the suspension allowances for the period, for which the petitioner remained suspended and later on it culminated to a dismissal order which was later on further modified, to an order of a compulsory retirement, the Disciplinary Authority has taken a decision that the petitioner would not be paid with the benefits. In fact, as per opinion of this Court, this order dated 27.03.2012 will fall to be within the domain of directions issued by the Division Bench of this Court to the Disciplinary Authority to take a decision to pay the balance allowances if payable, if any and if permissible, and payable under law. In fact, this decision if at all it was contrary to the intention of the judgment dated 17.10.2011, as per the perception of the petitioner. Then it ought to have been put to challenge by the petitioner in an independent proceedings subsequently but so far as taking of a decision and so far as dealing with the aspect of pay ability of the allowances as directed therein by the judgment dated 17.10.2010, the decision has already been taken by the Disciplinary Authority vide its order dated 27.03.2012. 6. Apart from it, when the contempt was filed, the respondents were noticed on 26.07.2002, and they have filed a compliance affidavit thereafter on 23.02.2015, in which in para 4, the following pleadings have been raised:- “4. That the compliance of Hon'ble High Court the post retirement benefits of Mr. B.K. Agarwal has been worked out and paid to him through Demand Draft No. 0075045 (344976) for Rs. 61929.38/- being balance amount of members contribution to PF of Mr. B K Agarwal after adjusting Rs. 5 Lakh (Rupees five lakh) outstanding in Sundry Debtors account at Nainital Branch by Transaction No-AA257273 dated 21.01.2015 through Speed-Post No. EV391391355IN Dated 22.01.2015. Demand Draft No. 0075046(349979) Dated 22.01.2015 for Rs. 61929.38/- being balance amount of members contribution to PF of Mr. B K Agarwal after adjusting Rs. 5 Lakh (Rupees five lakh) outstanding in Sundry Debtors account at Nainital Branch by Transaction No-AA257273 dated 21.01.2015 through Speed-Post No. EV391391355IN Dated 22.01.2015. Demand Draft No. 0075046(349979) Dated 22.01.2015 for Rs. 4,51,440.05/- for Gratuity Amount of rs.39375/- and Bank Contribution PF Rs.4,12,065.05/- Transaction No-AA246593 Dated 22.01.2015 through Speed-Post No-SPEV391385567IN Dated 23.01.2015." 7. It shows that certain amount of monetary benefits has already been extended to the petitioner and he has received it too. Though this fact of adequacy of the payment made in the compliance affidavit, is disputed by the petitioner by filing of an objection to it. 8. The tenacity of the argument of the learned counsel for the petitioner is that the judgement of 17.10.2011, where a decision thereof has been taken by way of denying to pay the suspension allowances is contrary to the very percept of service jurisprudence where, when an order of dismissal is proceeded by a modified order of compulsory retirement. Be that as it may. The direction by the Division Bench dated 17.10.2011, in its letter and spirit was a direction to the Disciplinary Authority to take a decision pay the allowance if payable, if any and permissible under law. That decision has already been taken, hence it cannot be said that the order has not been complied with. The order passed thereafter whether it is correct or not is not within the contempt jurisdiction under Section 12 of the Act. 9. The dissatisfaction to the decision taken on 27.03.2012 or for the matter dated 23.02.2015 cannot be a reason to draw a contempt proceeding, because the fact remains that the decision had been taken by the order dated 27.03.2012 it is correct or not its altogether a different matter. Consequently, no contempt as such is made out against the respondent because by virtue of an action taken by an order dated 27.03.2012, as well as the pleadings raised in para 4 of the compliance affidavit, the respondent have already been taken a decision by remitting the amount as well as by denying the payment of suspension allowances by an order dated 27.03.2012. Hence, no prima facie contempt or a deliberate and intentional contempt is made out to invoke Section 12 of the contempt of Courts Act. 10. Hence, no prima facie contempt or a deliberate and intentional contempt is made out to invoke Section 12 of the contempt of Courts Act. 10. Consequently, the contempt petition fails and the same is accordingly hereby dismissed. The notice issued to the respondents is hereby discharged.