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2025 DIGILAW 195 (KER)

Biju Abraham v. Lt. Gen. Pradeep Chandran Nair

2025-02-06

D.K.SINGH

body2025
JUDGMENT : D. K. Singh, J. The present contempt petition has been filed for alleged non-compliance and willful disobedience of the judgment dated 16.09.2022 passed in W. P(C) No. 22732/2022. Judgment dated 16.09.2022 is extracted hereunder: - “This writ petition is filed seeking the following reliefs:- i. To issue a writ of mandamus or such other writ or direction directing Respondents to give notional appropriate rank and pay scale to the petitioners as per the recommendations of the 5th central pay commission. ii. Issue a writ of mandamus or such other writ or direction directing Respondents, taking note of the directions and findings in Exhibits-P1 and P8 judgments and release the monetary benefits to the rank of Warrant Officer due to the petitioners within the time frame as fixed by this Hon’ble court. 2. Heard the learned counsel for the petitioner and the learned ASGI appearing for the respondents 1 and 2. 3. It is submitted by the learned counsel for the petitioner that the petitioner is entitled to the monetary benefits in the rank of Warrant Officer and the petitioner has approached the 2nd respondent with Ext.P4 representation claiming the benefits. The learned counsel for the petitioner relies on the judgments of this Court including Exts P1 and P8 to contend that the benefits are liable to be granted. Having heard the learned ASGI, there will be a direction to the 2nd respondent to take up Ext.P4 representation submitted by the petitioner and to consider and pass orders on the same, taking note of the judgments produced by the petitioner as well. Appropriate orders shall be passed within a period of two months from the date of receipt of a copy of this judgment.” 2. The learned counsel for the petitioner in this contempt petition submits that this court, in the judgment dated 16.09.2022, directed the 2nd respondent/contemnor to take the decision on Ext.P4 representation of the petitioner after taking note of the judgments produced by the petitioner. 3. However, the 2nd respondent, without considering the judgments produced along with the writ petition, has decided the representation of the petitioner vide the order dated 31.01.2024 and therefore, the 2nd respondent/contemnor has willfully disobeyed the judgment and direction passed by this Court in W.P (C) No. 22732/2022 dated 16.09.2022. 4. 3. However, the 2nd respondent, without considering the judgments produced along with the writ petition, has decided the representation of the petitioner vide the order dated 31.01.2024 and therefore, the 2nd respondent/contemnor has willfully disobeyed the judgment and direction passed by this Court in W.P (C) No. 22732/2022 dated 16.09.2022. 4. The petitioner had filed W.P(C) No. 22732/2022, praying for a direction to give him a notional appropriate rank and pay scale as per the recommendations of the 5th Central Pay Commission. It is further stated in this writ petition that there was a discriminatory practice between the Assam Rifles Employees and their counterpart in other central Paramilitary Forces, with regard to the rank and pay structure. 5. The Government of India, by the Gazette notification dated 29.08.1986, implemented the recommendation of the 4th Central Pay Commission, and in the said pay commission, the personnel of Assam Rifles were given the pay scale as applicable to other Central Paramilitary forces. Accordingly, the pay scale of the Operator Radio Lines (ORL), to which category the petitioner belongs was fixed as under:- Tech Class Rank Pay Scale CL-I ASI Rs.1320/- CL-II Hav Rs.975/- CL-III N/K Rs.950/- 6. However, the pay scale as indicated above in the chart was not implemented in the Assam Rifles as the technical staff were not given the post as per the 4th Central Pay Commission’s recommendation and the pay scale in Assam Rifles remained as under:- Tech Class Rank Pay Scale CL-I Hav Rs.975/- CL-II N/K Rs.950/- CL-III Rfn Rs.825/- 7. Thereafter, the recommendation of the 5th pay commission was implemented with effect from 01.04.1996. Under the recommendations of the 5th Pay Commission, all technical posts were re-designated, and the pay scales were revised. Thereafter, the recommendation of the 5th pay commission was implemented with effect from 01.04.1996. Under the recommendations of the 5th Pay Commission, all technical posts were re-designated, and the pay scales were revised. It is further submitted that in all paramilitary forces of the Central Government, the technical combatant staff were given the rank and pay scale of Sub Inspector, Assistant Sub Inspector of Police and Havildar, mentioned as per the chart below:- Tech Class Rank Pay Scale CL-I SI Rs.5500/- CL-II ASI Rs.4000/- CL-III Hav Rs.3200/- 8.The said recommendations were not implemented in the case of Assam Rifles and it remained stagnant as its evident from the below chart:- Tech Class Rank Pay Scale CL-I SI Rs.5500/- CL-II Hav (Head Constable) Rs.3200/- CL-III Rfn Rs.3050/- 9.The petitioner, therefore, filed W.P(C)No.22732/2022, claiming pay parity along with the designation of its post as in another Central Para Military Forces. This court disposed of the said writ petition by the judgment dated 16.09.2022 as mentioned above. The grievance of the petitioner is that without considering the judgments relied on by him, i.e., the judgment and order dated 22.09.2011 passed by the Guwahati High Court in W.A No.50(SH) 2010, judgment and order dated 05.06.2015 passed by this Court in W.P(C) No. 24735 of 2013, the petitioner’s representation was disposed of and therefore, the respondent/contemnor has willfully disobeyed the direction of this court contained in the judgment dated 16.09.2022 in W.P(C)No.22732 of 2022. 10.The learned counsel for the respondent contemnor has however submitted that the order in question dated 31.01.2024 passed by the 2nd respondent on the representation of the petitioner would disclose that the 2nd respondent has taken note of the judgments relied on by the petitioner i.e. the judgment dated 22.09.2011 passed by the Guwahati High Court in W. A No.50(SH) of 2010 and the judgment dated 05.06.2015 passed by this court in W. P(C) No.24735 of 2013, and after considering those judgments rejected the claim of the petitioner. It is therefore submitted that there is no willful disobedience or non-compliance of the direction issued by this court in W.P(C) No. 22732 of 2022. 11.It is further submitted that this court never directed that the decision would be taken on the representation of the petitioner for the desired result of the petitioner. It is therefore submitted that there is no willful disobedience or non-compliance of the direction issued by this court in W.P(C) No. 22732 of 2022. 11.It is further submitted that this court never directed that the decision would be taken on the representation of the petitioner for the desired result of the petitioner. The 2nd respondent was only directed to take note of the judgments relied on by the petitioner and the 2nd respondent has not only taken note of the judgments relied on by the petitioner but also considered them while deciding the representation of the petitioner. There is no willful disobedience of the direction issued by this court in W.P(C) No.22732 dated 16.09.2022. It is further submitted that the 2nd respondent has complied with the direction issued by this court, and, therefore, there is no contempt as alleged, and the contempt petition may be dismissed. 12. In rejoinder, the learned counsel for the petitioner has submitted that the 2nd respondent was required to comply with the judgment passed by this court in true letter and spirit. The judgment relied on by the petitioner passed by this court in W.P(C) No.22732 of 2022 dated 16.09.2022 would suggest that the objection raised by the respondents that the ‘petitioners were not in service’ was rejected. The decision was taken to implement the recommendations of the 5th pay commission with effect from 16.01.2001 when the petitioners were in service, and there could be no valid objections to granting the benefit with effect from the date when all the petitioners were in service. 13. The learned counsel for the petitioner submits that the judgment dated 16.09.2022 passed in W.P(C) No. 22732 of 2022 was specific that the decision on the representation of the petitioner was to be taken by the contemnor after taking note of the judgments relied on by the petitioner. The contemnor has merely taken note of those judgments but has not given any consideration while rejecting the representation of the petitioner, therefore, he has committed contempt of the court in willfully disobeying the directions contained in the judgment dated 16.09.2022 passed in W.P(C) No.22732 of 2022 and is liable to be punished. 14.I have considered the submissions advanced by the learned counsel for the petitioner as well as the respondent. 15. 14.I have considered the submissions advanced by the learned counsel for the petitioner as well as the respondent. 15. The 3rd paragraph of the judgment dated 16.09.2022 in W.P(C) No.22732/2022 as extracted above would suggest that this court directed the contemnor, the 2nd respondent in the writ petition to decide the representation of the petitioner for monetary benefits in the rank of warrant officer after taking note of the judgments produced by the petitioner. The authority has taken note of the aforesaid judgments but for the reasons stated found that the judgments are not applicable in the case of the petitioner, in my view, no contempt has been committed. 16. The decision dated 31.01.2024 taken by the contemnor / 2nd respondent would suggest that in compliance with the judgment and order dated 22.09.2011 passed in W.A No. 50(SH) of 2010 and this court vide the judgment and order dated 5.06.2015 passed in W.P(C) No.24735/2013, all the Operator Radio Line category person (serving/retired) have already been upgraded to the rank of Havildar (Operator Radio Line) 10.10.1997 or on passing of Technical Trade Test Class-III whichever was later. Accordingly, all consequential financial benefits under the ACP / MACP Scheme had been granted to all (Operator Radio Line) category persons of the Assam Rifles. 17. The contemnor / 2nd respondent has distinguished the case of the petitioner from those who were petitioners before the Guwahati High Court and before this court in the two cases cited above and similarly situated other Operator Radio Line category persons. 18.It is noted that the petitioner was enrolled in Assam Rifles as a rifleman (Operator Radio Line) on 05.07.1986 and promoted to the rank of Naik (Operator Radio Line) on 01.02.1996 and to the rank of Havildar on 10.10.1997. Due to the merger of ranks of Naik and Havildar in terms of the Ministry of Home Affairs direction contained in letter No.27012/97/PC Cell/ PF-1 dated 10.10.1997, the petitioner was granted the pay of a warrant officer and it was his second financial upgradation. 19. As the petitioner was granted a second financial upgradation, he was not entitled to another financial upgradation to the rank of Havildar (Operator Radio Line) in terms of the Guwahati High Court Judgment and judgment of this court cited above. 19. As the petitioner was granted a second financial upgradation, he was not entitled to another financial upgradation to the rank of Havildar (Operator Radio Line) in terms of the Guwahati High Court Judgment and judgment of this court cited above. 20.It has been further stated that the ACP Scheme was introduced with effect from 09.08.1999, wherein two financial upgradation were applicable to government servants on completion of 12 and 24 years of regular service and on qualifying all promotional qualitative requirements. The petitioner’s promotion to Havildar was considered as his first financial upgradation, and therefore, he was not considered for a second financial upgradation due to lack of requisite years, i.e., 24 years. MACP Scheme was introduced on 01.09.2008 wherein three financial upgradations were applicable on completion of 10, 20 and 30 years of regular service or on completion of 10 years of service in the same grade pay. The 2nd respondent, in the decision dated 31.01.2024, on the representation of the petitioner, has taken the view that the promotion of the petitioner to the rank of Havildar was considered as the first financial upgradation and second financial upgradation was granted under the MACP Scheme with effect from 23.01.2009 in the grade of pay of warrant officer. As the petitioner did not complete 30 years of regular service, he was not entitled to the third financial upgradation under the MACP Scheme. 21. He took the voluntary retirement pension with effect from 03.03.2009 before he could complete 30 years of service, and therefore, he was not granted a third financial upgradation under the MACP Scheme. 22. The question which falls for consideration in this contempt petition is whether the contemnor / 2nd respondent has defied or willfully disobeyed the judgment dated 16.09.2022 passed in W.P(C) No. 22732/2022. It is well settled that contempt proceedings would proceed only in respect of established willful disobedience of an order of the Court. 23.The Supreme Court in Ram Kishan v. Tarun Bajaj & Ors., 2014) 16 SCC 204 in Paragraph 12 has defined the word ‘wilful’ as a mental element which means knowingly, intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. Paragraph 12 of the said judgment would read as under:- 12. Thus, in order to punish a contemnor, it has to be established that disobedience of the order is ‘wilful’. Paragraph 12 of the said judgment would read as under:- 12. Thus, in order to punish a contemnor, it has to be established that disobedience of the order is ‘wilful’. The word ‘wilful’ introduces a mental element and hence, requires looking into the mind of person/contemnor by gauging his actions, which is an indication of one’s state of mind. ‘Wilful’ means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bonafide or unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a “bad purpose or without justifiable excuse or stubbornly, obstinately or perversely”. Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished. “Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct”. (Vide: S. Sundaram Pillai, etc. v. V.R. Pattabiraman; AIR 1985 SC 582 ; Rakapalli Raja Rama Gopala Rao v. Naragani Govinda Sehararao & Anr., AIR 1989 SC 2185 ; Niaz Mohammad & Ors. etc.etc. v. State of Haryana & Ors., AIR 1995 SC 308 ; Chordia Automobiles v. S. Moosa, AIR 2000 SC 1880 ; M/s. Ashok Paper Kamgar Union & Ors. v. Dharam Godha & Ors., AIR 2004 SC 105 ; State of Orissa & Ors. v. Md. Illiyas, AIR 2006 SC 258 ; and Uniworth Textiles Ltd. v. CCE, Raipur, (2013) 9 SCC 753 ). 24. The Supreme Court in Director of Education v. Uttaranchal & Ors v. Ved Prakash Joshi & Ors (2005) 6 SCC 98 as well as K. G Derasari & Anr.V.Union of India & Ors. v. Md. Illiyas, AIR 2006 SC 258 ; and Uniworth Textiles Ltd. v. CCE, Raipur, (2013) 9 SCC 753 ). 24. The Supreme Court in Director of Education v. Uttaranchal & Ors v. Ved Prakash Joshi & Ors (2005) 6 SCC 98 as well as K. G Derasari & Anr.V.Union of India & Ors. (2001) 10 SCC 496 has held that in exercising contempt jurisdiction, the court must examine whether the acts of commission or omission can be said to be contumacious conduct of the party who is alleged to have committed default in complying with the directions given in the judgment and order of the court. The Contempt Court ought not to take upon itself the power to decide the original proceedings in a manner not dealt with by the court passing the judgment and order. 25. In the exercise of the contempt jurisdiction, it is not open to the contempt court to go into the correctness or otherwise of the order or give additional directions or delete any directions. This course could be adopted only in review jurisdiction and not contempt proceedings. 26. Considering the aforesaid settled legal position, this court needs to examine whether the decision taken by the 2nd respondent dated 31.01.2024 on the representation of the petitioner in compliance of the direction issued by this court in the judgment dated 16.09.2022 in W.P(C) No. 22732 of 2022 would qualify the test of contumacious conduct of the 2nd respondent or can it be said that 2nd respondent/contemnor had willfully disobeyed the directions of this court. 27. As stated above, the only direction was to the contemnor/ 2nd respondent to consider the representation of the petitioner, and while deciding the representation, the 2nd respondent was directed to take note of the two judgments cited by the petitioner in the writ petition as mentioned above. There was no direction in which manner the judgment should be considered to give the desired result to the petitioner. The order dated 31.01.2024 passed by the 2nd respondent on the representation of the petitioner would clearly show that the 2nd respondent/contemnor not only took note of the two judgments cited by the petitioner but also distinguished those judgements as not applicable in the case of the petitioner. The order dated 31.01.2024 passed by the 2nd respondent on the representation of the petitioner would clearly show that the 2nd respondent/contemnor not only took note of the two judgments cited by the petitioner but also distinguished those judgements as not applicable in the case of the petitioner. 28.Keeping in mind the aforesaid facts and the law of contempt, I have no hesitation in holding that the 2nd respondent/contemnor while deciding the representation of the petitioner in compliance with the directions issued by this court in the judgment dated 16.09.2022 passed in W.P (C) No. 22732/2022 did not willfully disobeyed the direction. The conduct of the 2nd respondent is not contumacious. Therefore, I find that the contempt proceedings would not continue after the order dated 31.01.2024 has been passed by the contemnor / 2nd respondent in the representation of the petitioner in pursuance to the direction in judgment dated 16.09.2022 in W.P(C) No.22732/2022 as it has been fully complied with. Thus, the contempt petition is dismissed.