Karnataka High Court
K.S. Narayan And Ors. vs The Air India Corporation, New Delhi And ... on 10 December, 2001
Equivalent citations: 2002CRILJ1679, 2002(2)KARLJ167, 2002 CRI. L. J. 1679, 2002 AIR - KANT. H. C. R. 835, (2002) 3 ALLCRILR 876, (2002) 2 KANT LJ 167
Author: R.V. Raveendran
Bench: R.V. Raveendran, N.K. Patil
ORDER R.V. Raveendran, J.
1. This is a typical case of misuse of contempt proceedings. Brief reference to the facts of the case will be necessary.
2. Complainants 1 to 3 claim that they were appointed on daily wages by the Commercial Manager of Air India Corporation on 1-6-1995, 15-9-1997 and 8-12-1996 respectively. They filed W.P. Nos. 289 to 291 of 2000 in January 2000 seeking direction to the respondents to absorb and regularise their services against the posts of Office Boy/Helper or other appropriate posts in the establishment of second respondent and extend them the benefit of regular scales of pay, increments, D.A., and other allowances, amenities and facilities on par with the regular employees doing the same or identical nature of work. In the petition, they did not refer to any scheme which provided for regularisation. Nor did they rely on any provision of law or legal principle, which enabled them to seek regularisation on an alleged service on daily wage basis for periods varying from two and quarter years to three and half years. Nor did they produce copies of any representations or applications given by them seeking regularisation or absorption. They merely contended that as they have been in service on daily wage basis for some years, their services should be regularised and failure to do so would amount to hostile discrimination.
3. As the writ petition made no reference to any scheme for regularisation nor made out any legal right and did not even contain a reference to an application (demand) for regularisation, the learned Single Judge, did not examine the matter on merits, but disposed of the petition by the following brief order dated 7-7-2000 (extracted in entirety):
"The petitioners in this case have sought for a direction to the respondent either to absorb ,by regularising their services on the ground that they have been working on daily wages from the year 1996. If the petitioners are entitled for absorption by regularising their services, the same may be considered by the respondents in accordance with law. With this observation, the writ petitions are disposed of.
No specific direction was issued to any authority nor any time-limit was prescribed for performance. In the circumstances, the order merely meant that if the petitioners wanted any relief, they should give a representation or application to the respondents setting forth their claim and if and when such application is given, it is open to the respondents to consider the same. No right was recognised, no relief was granted and no enforceable order or direction was issued.
4. The petitioners, sought review of the said order by filing Review Petition No. 128 of 2000. The review petition was rejected by order dated 7-2-2001 without even ordering notice to the respondents, with the following observations:
"This Court, at best can issue only direction to the respondents to consider the case, whether the petitioners in the said writ petitions are entitled for regularisation or not. Pursuant to that, it is for the respondents to pass an appropriate order. In the instant case, there is no order passed by the respondents either for regularising the services of the petitioners in the writ petition or refusing the request of the petitioners in the said writ petitions for regularisation. When such being the case, I find it is not a case for review as this Court cannot issue positive direction to the respondents to regularise the services without examining whether they are entitled for regularisation or not. Therefore, I find no merit in this petition. Accordingly, this petition is rejected.
However, if the respondents are not taking any steps to consider the case of the petitioners in the writ petition for regularisation, it is open for the petitioners to move this Court in the contempt side".
5. The complainants have thereafter filed these contempt petitions praying that contempt proceedings be initiated against the respondents. The cause or ground for the complaint is stated in para 4 of the complaint. The same is extracted below for ready reference:
"The complainants submit that they approached the respondent-authorities for the relief as prayed for. The respondent did not come to comply with the order of the Court. The complainants got issued a legal notice to the respondents by its notice dated 6-8-2000. Thereafterwards, the complainants got issued another notice seeking for the relief as per this Hon'ble Court in W.P. Nos. 289 to 291 of 2000. But the respondents stated that they are unable to regularise the complainants' services as the order of the Hon'ble Court did not direct them to absorb. Hence, a review petition in R.P. No. 128 of 2001 was filed. The Hon'ble Court by its order dated 7-2-2001 directed that "if the respondents are not taking any steps to consider the case of the petitioners in the writ petition for regularisation, it is open for the petitioners to move this Hon'ble High Court in the contempt side". The complainants submit that the respondent is wilfully disobeying the Court order. Hence, it is just and necessary to initiate the contempt procedure against the respondent".
6. On the facts, the following points arise for consideration:
(i) Whether there is any direction by this Court to the respondents to consider the cases of complainants for regularisation? And
(ii) Whether there is any wilful disobedience of such a direction by respondents?
Re: Point No. (i).-
7. The object of issuing a writ of 'mandamus' is to compel performance of a legal duty. A mandamus will be issued when a person aggrieved who approaches the Court makes out (i) existence of a legal right in him and a corresponding obligation on the respondent to perform legal duty; and (ii) refusal (express or implied) by the respondent to perform such duty, in spite of a demand. Where a petition seeking a mandamus is not preceded by a demand for performance, the Court will be reluctant to examine the matter on merits. The petition will either be rejected or disposed of reserving liberty to the petitioner to approach the concerned Authority seeking performance. When doing so, if the Court incidentally observes that if an application or representation is given, the Authority may consider it in accordance with law, such an observation is neither a mandamus to perform a duty nor a direction to do any specific act. In such a case, if the petitioner has any grievance thereafter, he will have to file a fresh petition. Disobedience arises when there is a specific direction to do an act or not to do an act, and such direction is not obeyed. Where the Court desists from issuing a direction, for whatsoever reason, but disposes of a petition with an observation, then non-compliance with the observation, may enable the party aggrieved to approach the Court again, if there is a cause of action, but will not enable him to file a petition complaining of contempt.
8. Courts initiate contempt proceedings for wilful disobedience of writs, orders, directions, judgments, decrees and processes of Court and not for non-compliance with mere 'observations' or 'suggestions' or expressions of hope that something will be done. Such observations or suggestions are usually made when a Court feels that the person is not entitled to the relief sought in the proceedings but nevertheless, the respondent may consider the matter either on equitable considerations or on account of hardship; or when the petition fails on some technical ground and liberty is reserved to the petitioner to seek other remedy or approach the Court again after fulfilling certain requirements. But instances are not wanting where Courts after concluding that a petitioner is not entitled to any relief or that the petition is liable to be rejected, make some observations or suggestions, either to reduce the rigour of dismissal or out of sympathy, which is more often than not, is misplaced. Such gratuitous observations should be avoided as they tend to cause considerable difficulties or embarrassment to the Authority concerned in implementation or observance. But, we may hasten to add that there may be cases where the facts and circumstances may warrant same observations while disposing of cases, and Courts will in such cases invariably make them. The Courts should, however clarify as to which part of its operative order is 'direction/s' and which part is 'observation/s' or 'suggestion/s'.
9. We may now turn to the facts of this case. We have earlier extracted the entire order dated 7-7-2000 to show that there is no determination or decision on the question of any legal right. Nor is there a specific direction to do any specific act. The Court has made it clear that its words 'If the petitioners are entitled for absorption by regularising their services, the same may be considered by the respondents in accordance with law' is only an observation. No time frame is specified to give effect or implement the 'observation'. The observation in question also shows that if the petitioners are not entitled to absorption by regularisation, the respondents are not required to do anything. Thus, the order dated 7-7-2000 does not contain any direction requiring compliance or obedience.
10. Learned Counsel for the complainants submitted that, in its order dated 7-2-2001 in Rev. Pet. No. 128 of 2001, the learned Single Judge has observed that if the respondents are not taking any steps to consider their case for regularisation, it is open to them to move the Court on the contempt side and this shows that the learned Single Judge himself proceeded on the basis that the order dated 7-7-2000 contained a specific direction to consider their cases for regularisation. Here again we find that what is relied on is not a direction, but an observation made after rejecting the review petition. The observation is not a recognition or acceptance of the contention that the order dated 7-7-2000 contains a direction to consider their cases for regularisation. It only means that if the complainants are able to make out a case of wilful disobedience, they may request initiation of action for contempt and rejection of the review petition will not come in the way of filing a complaint. A relief that is, not granted by the order in the writ petition cannot be said to be granted by the order passed rejecting the review petition, particularly when such rejection is without even ordering notice to the respondents.
Re: Point No. (ii).-
11. As we have held that when there is no 'direction' or 'writ', the question of wilful disobedience does not arise. Even assuming that there is a direction to consider the applications to be filed by the complainants, failure to do so will not entitle the complainants to file a petition complaining contempt, as no time-limit is fixed for such consideration. In Union of India and Ors. v. Oswal Woollen Mills Limited and Ors., the Supreme Court held that where no limit of time is fixed by the High Court for consideration and disposal of the applications and the authority does not consider the matter, the remedy is not under the Contempt of Courts Act, 1971 but to file an application for fixing a limit of time for disposal of the applications. The Supreme Court held that where time is not fixed for taking action, failure to take action in the matter is not contempt. In this case, learned Single Judge did not fix any limit of time. In fact, he could not do so as there was no application in regard to which he could fix such time. When no time is fixed, appropriate course is to give an application and if such application is not considered, file a fresh writ petition.
12. Attempts on the part of the complainants to somehow coerce the respondents to consider their cases for regularisation requires to be deprecated. In dealing with petitions for contempt action, we will have to keep in view that a litigant filing a petition to initiate contempt proceedings does not become a complainant, but is only an informer or relator and his duty ends when the facts are brought to the notice of the Court (except to render assistance during the proceedings if the Court chooses to act on the information). The principles are encapsuled by the Supreme Court in Om Prakash Jaiswal v D.K. Mittal and Anr., as follows:
"The jurisdiction to punish for contempt is summary but the consequences are serious. That is why the jurisdiction to initiate proceedings in contempt as also the jurisdiction to punish for contempt in spite of a case of contempt having been made out are both discretionary with the Court. Contempt generally and criminal contempt certainly is a matter between the Court and the alleged contemnor. No one can compel or demand as of right initiation of proceedings for contempt. Certain principles have emerged. A jurisdiction in contempt shall be exercised only on a clear case having been made out. Mere technical contempt may not be taken note of. It is not personal glorification of a Judge in his office but an anxiety to maintain the efficacy of justice administration system effectively which dictates the conscience of a Judge to move or not to move in contempt jurisdiction".
13. These contempt petitions are therefore dismissed. The Registry is directed to send a copy of this order to second respondent for information.