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2022 DIGILAW 1212 (BOM)

Girija Maheshwari v. Z. A. Haq

2022-04-26

ROHIT B.DEO

body2022
JUDGMENT 1. This petition is preferred alleging contempt of the judgment dtd. 9/7/2015, rendered by this Court (Coram : Shri A.S. Chandurkar, J), in Writ Petition 3089/2004. 2. Writ Petition 3089/2004 was preferred by Anjuman Hami - E - Islam, Sadar, Nagpur and Anjuman College of Engineering and Technology, Sadar, Nagpur, challenging the judgment dtd. 16/6/2004, rendered by the University and College Tribunal, Nagpur, whereby the appeal preferred by the contempt petitioner was allowed and she was granted the relief of reinstatement in service with continuity and back wages. 3. The operative part of the judgment in Writ Petition 3089/2004, reads thus: (1) The judgment of the University and College Tribunal dtd. 16/6/2004 is confirmed. (2) The amount of back-wages as directed by the College Tribunal shall be paid to the respondent No.1 with 6% interest per annum. The aforesaid amount shall be paid to the respondent No.1 within a period of four months from today. (3) The respondent No.1 is permitted to withdraw the amount of Rs.60,000.00 with interest accrued thereon that was deposited by he petitioners pursuant to order dated 14-8- 2006. (4) Rule stands disposed of in aforesaid terms. No costs. 4. The contempt petitioner preferred Contempt Petition 2/2017 alleging the contempt of the decision rendered by this Court of which, the operative part is reproduced supra. It would be extremely relevant to note certain observations and findings recorded by this Court (Coram : Shri Manish Pitale, J.). In paragraph 6, the observation is, the management appears to have calculated the back wages on the basis of unrevised pay scale till January 2004, and on the basis of revised pay scale from February 2004 onwards. It is then observed that such calculation appears to have been made in terms of the communication addressed to the concerned authority, which at that point of time had approved of the same. It is then recorded that the contempt petitioner is not able to dispute the fact that all the other employees of the institution were paid salaries as per the unrevised pay scale till January 2004 and on the basis of the revised pay scale from February 2004. It is then recorded that the contempt petitioner is not able to dispute the fact that all the other employees of the institution were paid salaries as per the unrevised pay scale till January 2004 and on the basis of the revised pay scale from February 2004. This Court then observed that it would be difficult to accept the submission of the contempt petitioner that back wages ought to have been calculated on the basis of revised pay scale for the entire period for which the back wages were payable, and that by not doing so, the management had committed contempt. This Court then observed that the question whether particular Government Resolution and the direction issued by the State from time to time would be applicable to the institution which is a minority institution, is a question which goes beyond the scope of contempt jurisdiction. After recording the opinion that the management has shown substantial compliance with the direction issued by this Court, this Court found no substance in the contempt petition, and accordingly, dismissed the Contempt Petition as is discernible from paragraph 9 of the judgment. In paragraph 10 of the judgment, this Court made it clear that if the contempt petitioner intends to agitate any dispute as regards the entitlement to applicability of specific pay scale, she may do so by instituting appropriate proceedings, which shall be decided in accordance with law. It is clearly manifest from the judgment dtd. 6/11/2019, rendered in Contempt Petition 2/2017 that this Court recorded a categorical finding that the issue of applicability of Government Resolution and other direction issued by the State Government, to minority institution, cannot be the subject matter of Contempt Petition. It is equally clear that this Court did not find any substance in the Contempt Petition, which was accordingly dismissed, leaving it open to the contempt petitioner to agitate the dispute as regards the applicability of the Government Resolution and direction referred to supra by instituting appropriate proceedings. 5. The learned counsel for the petitioner Mr. R.K. Maheshwari invites my attention to the institution of Writ Petition 3799/2021 and the order dtd. 29/9/2021, rendered by the learned Division Bench. The prayer clause of Writ Petition 3799/2021, reads thus: (i) Direct the respondent to calculate the back wages as per Government Resolution no. RPS. 5. The learned counsel for the petitioner Mr. R.K. Maheshwari invites my attention to the institution of Writ Petition 3799/2021 and the order dtd. 29/9/2021, rendered by the learned Division Bench. The prayer clause of Writ Petition 3799/2021, reads thus: (i) Direct the respondent to calculate the back wages as per Government Resolution no. RPS. 2198/77/TE-6 from the date it was made applicable by the Government and then calculate interest as ordered by this Hon'ble Court in Writ Petition no. 3089/2004 and then pay the amount which is under arrears till today; (ii)Penal interest of 12% per annum may be imposed on the present respondents on the amount of back wages in addition to the amount of interest awarded by this Hon'ble Court vide judgment and order dtd. 9/7/2015 passed by this Hon'ble Court in Writ Petition 3089/2004. (iii)a compensatory cost of Rs.2,00,000.00 may be imposed on the respondents for wasting present petitioner's efforts in filing and pursuing the litigation which was necessitated because of unlawful defenses raised by the respondent in Contempt Petition no. 2/2017, and the mental, physical and financial distress it caused because of reckless action of respondents in the interest of justice; (iv)throughout costs of this litigation be saddled on the respondent herein, and ; (v)grant any other relief, as this Hon'ble Court deems fit and proper in the facts and circumstances of the case." Perusal of the order dtd. 29/9/2021, rendered by the learned Division Bench, reveals that the observation in paragraph 3 is that the relief claimed in prayer clause (i) is already granted to the petitioner in Writ Petition 3089/2004, decided on 9/7/2015. In so far as the other and further relief claimed by the petitioner, the observation in paragraph 4 is that the reliefs which are not granted by the learned Single Judge cannot be claimed in the Petition, and therefore, the Petition is not maintainable. In conclusion, the learned Division Bench dismissed the Writ Petition. 6. In my considered view, the present petition is not maintainable in law. Significantly, it was never the case of the petitioner that she was not paid the back wages at all. Her case was that she was not paid the back wages as per the correct pay scale. After having considered the said submission on merits, this Court found no substance in the earlier instituted Contempt Petition 2/2017 and dismissed the same. Significantly, it was never the case of the petitioner that she was not paid the back wages at all. Her case was that she was not paid the back wages as per the correct pay scale. After having considered the said submission on merits, this Court found no substance in the earlier instituted Contempt Petition 2/2017 and dismissed the same. This Court further observed that considering the issue of applicability of Government Resolution and direction to minority institution would be beyond the scope of contempt jurisdiction, and left it open to the petitioner to have an adjudication on the said issue by instituting appropriate proceedings. After the decision in the earlier instituted Contempt Petition, there is no adjudication whatsoever by any authority of the issue which was left open. 7. Mr. R.K. Maheshwari is placing heavy reliance on the observation of the learned Division Bench that the relief claimed in prayer clause (i) is already granted to the petitioner in Writ Petition 3089/2004, decided on 9/7/2015. It is neither permissible nor otherwise necessary for me to delve deeper. If the relief is already granted by the learned Single Judge in Writ Petition 3089/2004, even then, this Contempt Petition would not be maintainable since on the very set of facts, this Court dismissed the earlier Contempt Petition after considering the relief granted in Writ Petition 3089/2004. The fact that after the dismissal of the Contempt Petition, the learned Division Bench has made the observation referred to supra, is of no relevance or significance in the context of exercising jurisdiction under the Contempt of Courts Act. 8. Even otherwise, I have given anxious consideration to the judgment rendered by the learned Single Judge in Writ Petition 3089/2004. In the entire judgment, there is no reference whatsoever to Government Resolution RPS. 2198/77/TE-6 or then to the entitlement of the petitioner to claim salary in accordance with the said Government Resolution. The observation of the learned Division Bench in the order dtd. 29/9/2021 in Writ Petition 3799/2021 cannot by any stretch of imagination be understood as holding the petitioner entitled to the salary or back wages in accordance with Government Resolution RPS. 2198/77/TE-6. 9. Mr. R.K. Maheshwari invites my attention to the decision of the Supreme Court in Baranagore Jute Factory PLC. 29/9/2021 in Writ Petition 3799/2021 cannot by any stretch of imagination be understood as holding the petitioner entitled to the salary or back wages in accordance with Government Resolution RPS. 2198/77/TE-6. 9. Mr. R.K. Maheshwari invites my attention to the decision of the Supreme Court in Baranagore Jute Factory PLC. Mazdoor Sangh (BMS) and others vs. Baranagore Jute Factory PLC and Others, (2017) 5 SCC 506 , and in particular, to the observations in paragraph 23, which read thus: "23. As held by this Court in DDA v. Skipper Construction Co. (P) Ltd and going a step further, the Court has a duty to issue appropriate directions for remedying or rectifying the things done in violation of the Orders. In that regard, the Court may even take restitutive measures at any stage of the proceedings." 10. I am afraid, the observations supra do not take the case of the petitioner any further. I have already noted that the earlier Contempt Petition was dismissed by this Court after recording a finding that there is no substance in the Contempt Petition and that issue of applicability of certain Government Resolution or direction is beyond the scope of the contempt jurisdiction. I have further noted that there is no adjudication whatsoever by any authority or Court that the petitioner is entitled to the payment of back wages in accordance with a particular Government Resolution or direction which according to her, is also applicable to minor institution. The observation in the order of the learned Division Bench that the relief claimed in Writ Petition 3799/2021, prayer clause (i) is already granted by the learned Single Judge is not an adjudication as was left open in paragraph 10 of the judgment rendered in Contempt Petition 2/2017, particularly since the Government Resolution which is referred in prayer clause (i) is not even referred by the learned Single Judge, who decided Writ Petition 3089/2004, by judgment dtd. 9/7/2015. 11. I see no reason to entertain the Contempt Petition. 12. It is, however, made clear that it shall be open for the petitioner to have an unambiguous adjudication either from the concerned authority or then from such forum as is legally permissible, on her entitlement to higher pay scale in accordance with Government Resolution or direction on which she is placing reliance. 13. Petition is dismissed.