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2020 DIGILAW 788 (GUJ)

Dilipkumar Ambalal Patel v. Pankaj Joshi (IAS)

2020-09-21

N.V.ANJARIA, SONIA GOKANI

body2020
ORDER : N.V.ANJARIA, J. The above two Miscellaneous Civil Applications filed invoking the jurisdiction of this Court under the Contempt of Courts Act, 1971, have similar facts and common order. They both therefore are treated together for disposal by this common order. 2. In first captioned Miscellaneous Civil Application, the applicant has prayed to initiate contempt proceedings in respect of order dated 09th July, 2019 passed in Special Civil Application No.16812 of 2016 which was a common order in Special Civil Application Nos.19369 of 2018, 16812 of 2016, 5373 of 2018 and Special Civil Application No.2244 of 2018. The writ petition of the applicant of the first Miscellaneous Civil Application was Special Civil Application No.16812 of 2016 whereas that of the second applicant was Special Civil Application No.2244 of 2018. 2.1 In those petitions, the petitioners prayed to direct the opponent authorities to give benefit of General Provident Fund Scheme by transferring the petitioners from Contributory Provident Fund to General Provident Fund. It was further prayed to give benefit of pension scheme to them under Resolution dated 15th October, 1984 and to start paying monthly pension. The petitioners were the Lecturers. While allowing both the petitions, decision of the Division Bench of this Court in State of Gujarat v. Kalhans Harial Patel being Letters Patent Appeal No.2259 of 2017 and other cognate total 49 Letters Patent Appeals came to be relied on. The Court granted relief issuing directions to give the benefit of General Provident Fund, pension scheme. The same directions were passed as were passed in Kalhans Harial Patel (supra). 3. It may be noted that against the aforesaid common order in four Special Civil Applications, Letters Patent Appeal No.87 of 2020 and others were filed, which resulted into dismissal of the said Letters Patent Appeals as per common order dated 21st January, 2020. The judgment in the respective writ petitions stood confirmed. The applicants-the original petitioners have complained of willful breach and therefore contempt of the Courts Act as the directions have not been complied with. 4. Heard learned advocate Mr.Dharmesh Shah for the applicants, whereas learned Government Pleader Ms.Manisha Lavkumar with learned Assistant Government Pleader Ms.Aishvarya Gupta appeared on advance copy, in both the applications. 5. As noticed above, in both the cases, the judgment and the directions brought under contempt is based on the decision of the Division Bench in Kalhans Harial Patel (supra). 4. Heard learned advocate Mr.Dharmesh Shah for the applicants, whereas learned Government Pleader Ms.Manisha Lavkumar with learned Assistant Government Pleader Ms.Aishvarya Gupta appeared on advance copy, in both the applications. 5. As noticed above, in both the cases, the judgment and the directions brought under contempt is based on the decision of the Division Bench in Kalhans Harial Patel (supra). Now, in the group of Miscellaneous Civil Applications being Miscellaneous Civil Application No.798 of 2019 with Miscellaneous Civil Application No.751 of 2019 with Miscellaneous Civil Application No.824 of 2019 decided separately by common judgment of even date, the directions in Kalhans Harial Patel (supra) were brought under contempt and the question considered was whether the non-compliance of the said directions amounted to willful disobedience and therefore contempt of the court. 5.1 This Court held in the aforesaid judgment that there was no willful breach of the directions in view of the decision in Kalhans Harial Patel (supra) and other cognate maters having been pending before the Apex Court by way of filing of Special Leave Petitions and in view of orders passed in those Special Leave Petitions. Those Miscellaneous Civil Applications were dismissed and the proceedings were closed. 5.2 Learned advocate for the applicants in the present cases also could not dispute the position that similar set of facts and contentions arise in these two matters and that the decision in Miscellaneous Civil Application No.798 of 2019 and two other cognate matters mentioned above would apply to the cases on hand. 6. In that view, the discussion and the reasoning in the aforesaid judgment dated 21st September, 2020 in Miscellaneous Civil Application No.798 of 2020 and two other Miscellaneous Civil Applications would apply and the same are required to be adopted for the cases on hand also. 6.1 Following paragraphs are extracted from the aforesaid judgment in Miscellaneous Civil Application No.798 of 2019 and others which shall form part of the reasoning of the present order also. “2. It appears that in the very subject several writ petitions were filed and came to be allowed. The judgment of the learned Single Judge in all the petitions became subject matter of challenge before the Division Bench in State of Gujarat v. Kalhans Harial Patel being Letters Patent Appeal No.2259 of 2017 and group of total 49 Appeals decided as per common judgment dated 02nd May, 2019. The judgment of the learned Single Judge in all the petitions became subject matter of challenge before the Division Bench in State of Gujarat v. Kalhans Harial Patel being Letters Patent Appeal No.2259 of 2017 and group of total 49 Appeals decided as per common judgment dated 02nd May, 2019. All these Appeals of the State Government came to be dismissed, and resultantly all the applicants-petitioners stood entitled to the benefit of pension scheme. 2.1 The operative portion of the common judgment dated 02nd May, 2019 in Kalhans Harial Patel (supra), as recorded in paragraph No.15 of the judgment, is extracted hereinbelow. “15. For the aforesaid reasons, the judgments rendered by the learned Single Judges in the respective Letters Patent Appeals are confirmed. The State authorities are directed to grant the benefit of the pension scheme to all the respondents in view of the Government Resolution dated 15.10.1984 from the date of their respective retirement. The respondents who have not refunded/repaid the amount of Contributory Provident Fund, their case be considered by the authorities by paying the amount of pension after adjusting/setting off the amount of Contributory Provident Fund payable by the respondents. In case of the respondents who have refunded/repaid the amount of Contributory Provident Fund, they shall be entitled for interest at the rate of 9% per annum on the amount of pension from the date of their repaying/refunding the amount of Contributory Provident Fund. The respective parties shall act upon these directions and implement the same within 8 weeks from the date of receipt of the writ of the order of this Court. Appeals are accordingly dismissed. Civil Applications also stand disposed of accordingly.” 2.2 Thus, as per the above directions in the common judgment in the group of Letters Patent Appeals in Kalhans Harial Patel (supra), while confirming the judgment of the learned Single Judge in the respective writ petitions, the Division Bench directed the opponent authorities to grant the benefit of pension scheme to all the applicants before it–the original petitioners, in view of the Government Resolution dated 15th October, 1984. The benefits were directed to be granted from the respective dates of retirement of the petitioners. The benefits were directed to be granted from the respective dates of retirement of the petitioners. It is further provided in the order under contempt that the respondents in the Letters Patent Appeals who have not refunded or repaid the amount of contributory provident fund, their case would be considered by the authorities by paying the payment of pension after adjusting the amount of contributory provident fund. Those employees who have refunded the amount of contributory provident fund are entitled to earn interest at the rate of 9% on the amount of pension from the date of their refunding of the contributory provident fund. 3. By filing the present Miscellaneous Civil Applications, the applicants have prayed to initiate the proceedings under the Contempt of Courts Act, 1971 against the opponent authorities on the ground that there has been willful and deliberate disobedience of the said judgment dated 02nd May, 2019. It is also prayed against the opponents to purge the contempt by giving all the consequential benefits to the applicants. 3.1 Pursuant to notice issued by this Court in the present matters on 23rd September, 2019, on behalf of the opponents, reply affidavits have been filed. Opponent No.4-Director, Commissioner of Higher Education, in his affidavit-in-reply dated 28th August, 2020, after having tendered unconditional apology if it were to be deliberate or intentional breach on part of the opponents, raised various submissions to urge before the Court that no contempt was committed by the authorities. 3.2 Following main submissions were canvassed in the reply affidavit. (i) In another case being State of Gujarat v. Banuben Rameshbhai Dhakan being Civil Appeal No.9018 of 2016 (converted from Special Leave to Appeal (C) No.15392 of 2016), the Supreme Court has granted stay as per order dated 02nd September, 2016. The issue Banuben Rameshbhai Dhakan (supra) pertained to the benefits of the very Government Resolution dated 15th October, 1984. It is this very Resolution dated 15th October, 1984 which has been dealt with by the Division Bench in Kalhans Harial Patel (supra) in its common judgment dated 02nd May, 2019. The issue Banuben Rameshbhai Dhakan (supra) pertained to the benefits of the very Government Resolution dated 15th October, 1984. It is this very Resolution dated 15th October, 1984 which has been dealt with by the Division Bench in Kalhans Harial Patel (supra) in its common judgment dated 02nd May, 2019. (ii) The aforementioned common judgment in Kalhans Harial Patel (supra) dated 02nd May, 2019 in the group of Letters Patent Appeals has been challenged before the Apex Court by way of Special Leave Petition (C) (Diary) No.39277 of 2019 and that the said Special Leave Petition has been directed to be tagged with Civil Appeal No.9018 of 2016, that is State of Gujarat v. Banuben Rameshbhai Dhakan. (iii) On the basis of the judgment in Kalhans Harial Patel (supra), yet another case in Arvind Bhandari v. State of Gujarat being Special Civil Application No.15059 of 2015 came to be rendered by learned Single Judge as per order dated 17th July, 2019, against which Letters Patent Appeal No.86 of 2020 was preferred and stood dismissed. There against Special Leave to Appeal (C) No.9615 of 2020, that is State of Gujarat v. Arvind Bhandari, has been presented before the Apex Court on 24th August, 2020. The Apex Court directed that no coercive steps shall be taken against the respondent-State. 4. Heard learned senior advocate Mr. Gautam Joshi assisted by learned advocate Mr. Panam Soni, learned advocate Mr. Dharmesh Shah and learned advocate Mr. Bhushan Oza for the applicants in the respective cases and learned Government Pleader Ms. Manisha Lavkumar with learned Assistant Government Pleader Ms. Aishvarya Gupta for the opponents. 4.1 Learned advocates appearing for the applicants vehemently submitted that there has been a willful non-compliance of the directions of the judgment and order in Kalhans Harial Patel (supra). It was submitted that despite there being no stay against the said judgment, the authorities have not extended the benefits flowing therefrom. It was submitted that once the said judgment is not subjected to any kind of restraint order, the authorities were bound to comply with the directions issued therein. It was submitted that despite there being no stay against the said judgment, the authorities have not extended the benefits flowing therefrom. It was submitted that once the said judgment is not subjected to any kind of restraint order, the authorities were bound to comply with the directions issued therein. 4.2 With regard to contentions raised in the affidavit-in-reply, it was submitted that order of the Apex Court dated 02nd September, 2016 passed in Banuben Rameshbhai Dhakan (supra) was limited to the judgment impugned in the said Appeal and the stay granted therein would not apply to the decision and the directions in Kalhans Harial Patel (supra) which is the judgment brought under contempt in the present proceedings. They also submitted that the order dated 24th August, 2020 of the Hon’ble Supreme Court in Arvind Bhandari (supra) which directed that no coercive steps be taken would also apply to that particular case only and the same could not be the reason not to comply with the directions which are subject matter of contempt in the present proceedings. 4.3 On the other hand, learned Government Pleader heavily relied on the averments and submissions in the affidavit-in-reply of opponent No.4 to submit that the Supreme Court is seized with the subject matter which is same in the matters before the Apex Court and in Kalhans Harial Patel (supra). It was submitted that all the said cases dealt with same issue of grant of benefits pursuant to Government Resolution dated 15th October, 1984. Inviting attention of the Court to the various orders passed by the Apex Court in those referred cases, it was contended that in such circumstances, non-compliance of the directions in Kalhans Harial Patel (supra) cannot be said to be a deliberate disobedience or contempt of the Court. 5. Having considered the subject matter and the judgment and order under the contempt, the controversy with regard to non-compliance thereof and having further considered the rival submissions, the basic factual aspects which become noticeable as relevant are in relation to the different proceedings pending before the Supreme Court. The judgment in Kalhans Harial Patel (supra) in respect of which the contempt jurisdiction is invoked, is already subject to Special Leave Petition being Special Leave Petition (C)(Diary) No.39277 of 2019. The judgment in Kalhans Harial Patel (supra) in respect of which the contempt jurisdiction is invoked, is already subject to Special Leave Petition being Special Leave Petition (C)(Diary) No.39277 of 2019. 5.1 In the aforesaid already preferred Special Leave Petition in State of Gujarat v. Kalhans Harial Patel, the Supreme Court has passed the following order on 09th June, 2020. “1. Mr. K.M. Natraj, learned Additional Solicitor General, states that Civil Appeal No 531 of 2017 and Civil Appeal No 9018 of 2016 in which a similar issue has been raised are pending. It appears from the record that another Special Leave Petition has, however, been dismissed by this Court keeping the question of law open. 2. We direct that the companion matters, namely, Civil Appeal No 531 of 2017 and Civil Appeal No 9018 of 2016 be listed on 15 June 2020, together with the present Special Leave Petition, so that the Court can consider overall perspective of the matter. 3. Liberty to file a short note by 12 June 2020.” 5.2 Civil Appeal No.9018 of 2016 being State of Gujarat v. Banuben Rameshbhai Dhakan referred to in the above quoted order is pending with the following order passed therein as back as on 02nd September, 2016. “Delay condoned. Leave granted. There shall be stay of operation of the impugned judgment until further orders.” 5.3 The Hon’ble Supreme Court has passed further order on 15th June, 2020, which reads as under. “1. A letter has been circulated on behalf of the first respondent in Civil Appeal No 531 of 2017 seeking time to file counter affidavit. The counter affidavit be filed before the next date of listing. 2. List the matters after two weeks.” 5.4 The order passed in another Special Leave to Appeal (C) No.9615 of 2015 arising from the decision of this Court in Arvind Bhandari (supra) is pending with the currency of the order as under. It is to be recollected that decision in Arvind Bhandari (supra) as confirmed by the Letters Patent Bench of this Court relied and rested on Kalhans Harial Patel (supra). “1. Issue notice. 2. Tag with SLP (C) Diary No 39277 of 2019. 3. It is to be recollected that decision in Arvind Bhandari (supra) as confirmed by the Letters Patent Bench of this Court relied and rested on Kalhans Harial Patel (supra). “1. Issue notice. 2. Tag with SLP (C) Diary No 39277 of 2019. 3. Till the next date of listing, no coercive steps shall be taken against the petitioners on the basis of the impugned judgment and order of the High Court.” 5.5 It is in the above scenario of pending Appeals before the Supreme Court and the orders subsisting therein, that the question is to be examined as to whether the opponents can be said to have committed willful breach of directions in Kalhans Harial Patel (supra). It is an admitted fact that in Civil Appeal No.9018 of 2016, the very Resolution dated 15th October, 1984 which became the basis for deliverance of judgment in Kalhans Harial Patel (supra) and also in Arvind Bhandari (supra) is the subject matter of consideration. The Hon’ble Supreme Court has granted stay on the judgment impugned in State of Gujarat v. Banuben Rameshbhai Dhakan being Civil Appeal No.9018 of 2016. 5.6 Furthermore, decision in Arvind Bhandari (supra) was rendered by learned Single Judge as well as by the Letters Patent Bench was rested on the law laid down in Kalhans Harial Patel (supra). Against the Arvind Bhandari (supra), Special Leave to Appeal (C) No.9615 of 2020 is pending. The Hon’ble Supreme Court has directed not to take coercive steps against the petitioner-State on the basis of the impugned judgment of the High Court and has further ordered to tag the said Special Leave to Appeal (C) No.9615 of 2020 with Special Leave Petition (C) (Diary) No.39277 of 2019 which is the Special Leave Petition arising from Kalhans Harial Patel (supra). It has to be noted that in all the three cases viz. Banuben Rameshbhai Dhakan (supra), Kalhans Harial Patel (supra) and Arivnd Bhandari (supra), the controversy relates to the grant of pension scheme benefit for which the common thread basis is Resolution dated 15th October, 1984. 5.7 The judgment impugned in Banuben Rameshbhai Dhakan (supra) has been stayed by the Apex Court. In Arvind Bhandari (supra), the decision in Kalhans Harial Patel (supra) has been directly relied on to extend the benefits. 5.7 The judgment impugned in Banuben Rameshbhai Dhakan (supra) has been stayed by the Apex Court. In Arvind Bhandari (supra), the decision in Kalhans Harial Patel (supra) has been directly relied on to extend the benefits. In Arvind Bhandari being Special Leave to Appeal No.9615 of 2020, the Supreme Court has prohibited taking of coercive steps against the petitioner-State. In other words, there is a restraint order by the Apex Court of not taking coercive steps in respect of the judgment in which the very judgment brought under contempt in the present proceedings are relied on and directly followed. Further, the said Appeal in Arvind Bhandari (supra) is directed to be listed with the Special Leave Petition arising from the decision in Kalhans Harial Patel (supra). 6. It therefore clearly emerges that the Supreme Court has viewed the matters as having direct link amongst them. While dealing with the Special Leave Petition (C) (Diary) No.39277 of 2019, in order dated 09th June, 2020 referred to above, the Hon’ble Supreme Court has further directed that “companion matters” namely Civil Appeal No.531 of 2017 and Civil Appeal No.9018 of 2016 be listed with the Special Leave Petition, that is arising from Kalhans Harial Patel (supra) observing further that, so that the Court can consider overall perspective of the matter. 6.1 In terms of Section 2(b) of the Contempt of Courts Act, 1971, a civil contempt can be said to have been committed when there is a willful disobedience of any judgment, order, decree etc. In the said provision, civil contempt is defined to mean willful disobedience of any judgment, decree, direction order, writ or other process of Court or willful breach of an undertaking given to a Court. The disobedience of judgment or direction has to be willful. Willfulness is an element sine qua non to constitute the disobedience a contempt under the law. Willful disobedience implies on part of the alleged contempner, an intentional conduct or motive, not to comply with the order or direction of the Court, for no rhyme or reason. 6.2 When a particular judgment in respect of which the contempt is alleged is under challenge before the Apex Court and the Apex Court is seized with such Special Leave Petition, it is difficult to view a willfulness in the non-compliance of the directions in the order appealed against. 6.2 When a particular judgment in respect of which the contempt is alleged is under challenge before the Apex Court and the Apex Court is seized with such Special Leave Petition, it is difficult to view a willfulness in the non-compliance of the directions in the order appealed against. A litigant, whether private of State authority, has right to approach higher forum within reasonable time against the judgment adverse to them and place their merits for consideration by the appellate court. Secondly, when the directions in one judgment is brought under contempt is relied on in an another judgment, and such another judgment is taken to the Apex Court and the restraint order of stay or of not taking coercive action or of any kind has been passed by the Apex Court, in such eventuality, the grievance about non-compliance of the directions in the judgment relied on cannot tantamount to willful breach to constitute a contempt since the whole substratum of the controversy can be said to be pending before the Apex Court with currency of interim restrain order passed by the Apex Court. 6.3 In the event, a judgment is appealed against and the appellate court has stayed it or passed some interim protective order in favour of the appellant, one cannot allege contempt in respect of the judgment which may have been relied on in the judgment appeal against and stayed or subjected to restraint order. It can be said to be creating a situation analogous to implied overruling as impliedly overruled judgment cannot be implemented or acted upon. In such scenario and circumstances, essential ingredient of “willful disobedience” is absent.” 7. In the aforesaid view and the discussion supplied, it could not be held that the directions in the order under contempt in either of the two Miscellaneous Civil Applications are willfully disobeyed or there is contempt of Court. Resultantly, we dismiss the present two Miscellaneous Civil Applications and close the proceedings.