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Contempt of Court – No violation – No willful disobedience -High court order for reinstatement – Apex court in addition to that ,order for back wages for the period of out of job – Except that – the question of promotion, revised pay scale etc., not raised nor discussed in both courts’ judgments – already another person was promoted – not challenged – for one post two payments of salary does not arise – in the absence of willfulness – in the absence of any directions and it’s alleged violation – no contempt petition is maintainable – Apex court dismissed the Contempt petition = Ram Kishan …Applicant Versus Sh. Tarun Bajaj & Ors. …Respondents 2014 ( January – Vol – 1-D.B.) Judis.nic.in/ S.C./ file name =41161

Contempt of Court – No violation – No willful disobedience -High court order for reinstatement – Apex court  in addition to that ,order for back wages for the period of out of job – Except that – the question of promotion, revised pay scale etc., not raised nor discussed in both courts’ judgments – already another person was promoted – not challenged – for one post two payments of salary does not arise – in the absence of willfulness –  in the absence of any directions and it’s alleged violation – no contempt petition is maintainable – Apex court dismissed the Contempt petition =

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”.

It is well settled principle of law that if two  interpretations

      are possible, and if  the  action  is  not  contumacious,  a  contempt

      proceeding would not be maintainable.

 

The

      application  for  initiating  the  contempt  proceedings  is   totally

      misconceived and is liable to be rejected.

 

there is neither any direction of any  court  to  give

      benefit of the revised post to the applicant, nor his candidature  has

      ever been considered for that post.  

The judgment and order of the learned Single Judge granting  the

      relief to the applicant reads:

“Resultantly, this writ petition is  allowed,  the  order  dated

           19.11.2003 (Annexure P-27) is set aside and  the  petitioner  is

           ordered to be reinstated into  service  with  all  consequential

           benefits. It is, however, clarified that the petitioner will not

           be entitled to wages for the period he was out of job.”

(Emphasis added)

The judgment and order of this Court  dated  5.7.2012  in  Civil

      Appeal No. 4985/2012 reads:

“Accordingly, we allow the appeal and modify the  order  of  the

           learned  Single  Judge,  as  also  of  the  Division  Bench,  by

           directing that the appellant will also be entitled to back-wages

           for the period  during  the  termination  of  his  services  and

           reinstatement in terms of the High Court’s order.

Therefore, the question  does

      arise as to whether such an order would also mean that  the  applicant

      could claim post revision and benefits  of  the  higher  post  without

      being considered for the said post.

In view of the aforesaid  settled  legal  proposition,  we  have

      repeatedly asked the  learned  counsel  appearing  for  the  applicant

      under what circumstances this Court can ask the statutory authority to

      pay the salary to two persons for one post, particularly  in  view  of

      the fact that Smt. Poonam Bhasin had never been a party  to  the  lis,

      nor her re-designation/promotion  had  ever  been  challenged  by  the

      applicant or someone else. More so, learned counsel for the  applicant

      could not point out the service rules applicable to the  applicant  to

      assess his eligibility etc.

 

 

      15.   In such a fact-situation, leaving the issue  of  entitlement  of

      the applicant, we are of the considered opinion that no case  is  made

      out to initiate the contempt proceedings against the respondents.  The

      petition is totally misconceived and devoid of  merit,  hence,  it  is

      dismissed.  No order as to costs.

 

 

2014 ( January – Vol – 1-D.B.) Judis.nic.in/ S.C./ file name  =41161

 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
CONTEMPT PETITION NO. 336 of 2013
IN
CIVIL APPEAL NO. 4985 of 2012

 
Ram Kishan …Applicant
Versus
Sh. Tarun Bajaj & Ors.
…Respondents

 

 
J U D G M E N T
Dr. B.S. Chauhan, J.

 
1. This Contempt Petition has been filed by the applicant that the
respondents, who are alleged contemnors herein, have wilfully violated
the judgment and order dated 5.7.2012 passed by this Court in C.A. No.
4985 of 2012 as the respondents failed to pay all consequential
benefits of service as directed and thus, the respondents should be
dealt with under the provisions of Contempt of Courts Act, 1971
(hereinafter referred to as `the Act’) and further, to direct the
contemnors to implement the order in its true spirit and fix his
pension according to the post of Joint Secretary (Legal) and provide
all its retirement benefits.
2. Facts and circumstances of this petition are that the applicant
while working as an Under Secretary (Legal), Dakshin Haryana Bijli
Vitran Nigam Ltd. (hereinafter referred to as `Nigam’) was
compulsorily retired vide an order dated 19.11.2003. Aggrieved, he
challenged the said order by filing Writ Petition No. 3954 of 2004 and
during its pendency, he reached the age of superannuation on
28.2.2006. The said writ petition was allowed by the learned Single
Judge vide judgment and order dated 10.2.2009 quashing the impugned
order dated 19.11.2003 but did not award the back wages to the
applicant for the period he was out of job. The Nigam filed LPA No.
646 of 2009 challenging the order of the learned Single Judge. The
applicant also filed LPA No. 542 of 2009 for claiming the arrears of
pay. The LPA of Nigam was dismissed affirming the judgment and order
of the Single Judge vide judgment and order dated 24.7.2009 and has
attained finality. The appeal filed by the applicant was also
dismissed vide judgment and order dated 10.8.2009.
3. Aggrieved, the applicant challenged the judgment and order dated
10.8.2009 of the Division Bench by filing the Special Leave Petition
which was entertained as C.A. No. 4985 of 2012, which was disposed of
by this Court vide judgment and order dated 5.7.2012 directing that
the applicant shall be entitled to the back wages for the period
during which he was out of job alongwith reinstatement. The applicant
has not been given the benefit of re-designated pay/post and the pay-
scale of a higher post wherein after the compulsory retirement of the
applicant, one Smt. Pooman Bhasin had been appointed w.e.f. 16.3.2005
and has been extended the benefit which has been allegedly denied to
the applicant.
Hence, this Contempt Petition.
4. Shri Vikas Mehta, learned counsel appearing on behalf of the
applicant, has submitted that as the learned Single Judge of the High
Court had allowed the writ petition filed by the applicant quashing
the order of compulsory retirement with all consequential benefits
except back wages and this Court allowed the appeal of the applicant
and has given back wages also. The conjoint reading of both the
orders tantamount to grant of all possible/permissible benefits to the
applicant for his service. As the applicant was senior to Smt. Poonam
Bhasin, he was entitled to the re-designated post as well as the
salary for the post of Joint Secretary (Legal), which has been denied
by the respondents. Therefore, the applicant is entitled for the
claim and the respondents should be prosecuted and punished for
disobedience of the said judgments and orders.
5. On the contrary, Shri Narender Hooda, learned AAG appearing on
behalf of the respondents, has vehemently opposed the application
contending that there is neither any direction of any court to give
benefit of the revised post to the applicant, nor his candidature has
ever been considered for that post. The State authority cannot be
forced to pay the salary to two persons for one post. The applicant
has never challenged the re-designation of Smt. Poonam Bhasin. Thus,
there is no wilful disobedience of any order passed by this Court. The
application for initiating the contempt proceedings is totally
misconceived and is liable to be rejected.
6. We have considered the rival contentions advanced by learned
counsel for the parties and perused the records.
7. The judgment and order of the learned Single Judge granting the
relief to the applicant reads:
“Resultantly, this writ petition is allowed, the order dated
19.11.2003 (Annexure P-27) is set aside and the petitioner is
ordered to be reinstated into service with all consequential
benefits. It is, however, clarified that the petitioner will not
be entitled to wages for the period he was out of job.”
(Emphasis added)
The judgment and order of this Court dated 5.7.2012 in Civil
Appeal No. 4985/2012 reads:
“Accordingly, we allow the appeal and modify the order of the
learned Single Judge, as also of the Division Bench, by
directing that the appellant will also be entitled to back-wages
for the period during the termination of his services and
reinstatement in terms of the High Court’s order.”
8. Both the judgments referred to hereinabove speak of back wages
and the judgment of the learned Single Judge in the High Court
referred to all consequential benefits. Therefore, the question does
arise as to whether such an order would also mean that the applicant
could claim post revision and benefits of the higher post without
being considered for the said post.
9. Contempt jurisdiction conferred onto the law courts power to
punish an offender for his wilful disobedience/contumacious conduct
or obstruction to the majesty of law, for the reason that respect and
authority commanded by the courts of law are the greatest guarantee to
an ordinary citizens that his rights shall be protected and the entire
democratic fabric of the society will crumble down if the respect of
the judiciary is undermined. Undoubtedly, the contempt jurisdiction is
a powerful weapon in the hands of the courts of law but that by itself
operates as a string of caution and unless, thus, otherwise satisfied
beyond reasonable doubt, it would neither fair nor reasonable for the
law courts to exercise jurisdiction under the Act. The proceedings are
quasi- criminal in nature, and therefore, standard of proof required
in these proceedings is beyond all reasonable doubt. It would rather
be hazardous to impose sentence for contempt on the authorities in
exercise of contempt jurisdiction on mere probabilities. (Vide: V.G.
Nigam & Ors. v. Kedar Nath Gupta & Anr., AIR 1992 SC 2153; Chhotu Ram
v. Urvashi Gulati & Anr., AIR 2001 SC 3468; Anil Ratan Sarkar & Ors.
v. Hirak Ghosh & Ors., AIR 2002 SC 1405; Bank of Baroda v. Sadruddin
Hasan Daya & Anr., AIR 2004 SC 942; Sahdeo alias Sahdeo Singh v. State
of U.P. & Ors., (2010) 3 SCC 705; and National Fertilizers Ltd. v.
Tuncay Alankus & Anr., AIR 2013 SC 1299).
10. 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).
11. In Lt. Col. K.D. Gupta v. Union of India & Anr., AIR 1989 SC
2071, this Court dealt with a case wherein direction was issued to
the Union of India to pay the amount of Rs. 4 lakhs to the applicant
therein and release him from defence service. The said amount was
paid to the applicant after deducting the income tax payable on the
said amount. While dealing with the contempt application, this Court
held that “withholding the amount cannot be held to be either malafide
or was there any scope to impute that the respondents intended to
violate the direction of this Court.”
12. In Mrityunjoy Das & Anr. v. Sayed Hasibur Rahaman & Ors., AIR
2001 SC 1293, the Court while dealing with the issue whether a doubt
persisted as to the applicability of the order of this Court to
complainants held that it would not give rise to a contempt petition.
The court was dealing with a case wherein the statutory authorities
had come to the conclusion that the order of this court was not
applicable to the said complainants while dealing with the case under
the provision of West Bengal Land Reforms Act, 1955.
13. It is well settled principle of law that if two interpretations
are possible, and if the action is not contumacious, a contempt
proceeding would not be maintainable. The effect and purport of the
order is to be taken into consideration and the same must be read in
its entirety. Therefore, the element of willingness is an
indispensable requirement to bring home the charge within the meaning
of the Act. (See: Sushila Raje Holkar v. Anil Kak (Retd.), AIR 2008
(Supp-2) SC 1837; and Three Cheers Entertainment Pvt. Ltd. & Ors. v.
C.E.S.C. Ltd., AIR 2009 SC 735).
14. In view of the aforesaid settled legal proposition, we have
repeatedly asked the learned counsel appearing for the applicant
under what circumstances this Court can ask the statutory authority to
pay the salary to two persons for one post, particularly in view of
the fact that Smt. Poonam Bhasin had never been a party to the lis,
nor her re-designation/promotion had ever been challenged by the
applicant or someone else. More so, learned counsel for the applicant
could not point out the service rules applicable to the applicant to
assess his eligibility etc.
15. In such a fact-situation, leaving the issue of entitlement of
the applicant, we are of the considered opinion that no case is made
out to initiate the contempt proceedings against the respondents. The
petition is totally misconceived and devoid of merit, hence, it is
dismissed. No order as to costs.
…………………………………
………….J.
(Dr. B.S. CHAUHAN)

 
…….……………………………J.
(J. CHELAMESWAR)
New Delhi,
January 17, 2014

 

 

 

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